40234 Federal Register / Vol. 86, No. 141 / Tuesday, July 27, 2021 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 300 

[EPA–HQ–OPA–2006–0090; FRL–4526.1– 

01–OLEM] 

RIN 2050–AH16 

National Oil and Hazardous 

Substances Pollution Contingency 

Plan; Monitoring Requirements for Use 

of Dispersants and Other Chemicals 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA or the Agency) is 

amending the requirements in Subpart J 

of the National Oil and Hazardous 

Substances Pollution Contingency Plan 

(NCP) that govern the use of dispersants, 

other chemicals and other spill 

mitigating substances when responding 

to oil discharges into waters of the 

United States. Specifically, this action 

establishes monitoring requirements for 

dispersant use in response to major oil 

discharges and/or certain dispersant use 

situations in the navigable waters of the 

United States and adjoining shorelines, 

the waters of the contiguous zone, and 

the high seas beyond the contiguous 

zone in connection with activities under 

the Outer Continental Shelf Lands Act, 

activities under the Deepwater Port Act 

of 1974, or activities that may affect 

natural resources belonging to, 

appertaining to, or under the exclusive 

management authority of the United 

States, including resources under the 

Magnuson Fishery Conservation and 

Management Act of 1976 (‘‘navigable 

waters of the United States and 

adjoining shorelines’’). These new 

monitoring requirements are anticipated 

to better target dispersant use, thus 

reducing the risks to the environment. 

Further, the amendments are intended 

to ensure that On-Scene Coordinators 

(OSCs) and Regional Response Teams 

(RRTs) have relevant information to 

support response decision-making 

regarding dispersant use. 

DATES: This final rule is effective on 

January 24, 2022. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OPA–2006–0090. All 

documents in the docket are listed on 

the http://www.regulations.gov website. 

Although listed in the index, some 

information is not publicly available, 

e.g., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available electronically through http://

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: For 

general information, contact the 

Superfund, TRI, EPCRA, RMP, and Oil 

Information Center at 800–424–9346 or 

TDD at 800–553–7672 (hearing 

impaired). In the Washington, DC 

metropolitan area, contact the 

Superfund, TRI, EPCRA, RMP, and Oil 

Information Center at 703–412–9810 or 

TDD 703–412–3323. For more detailed 

information on this final rule contact 

Gregory Wilson at 202–564–7989 

(wilson.gregory@epa.gov). The contact 

address is: U.S. Environmental 

Protection Agency, Office of Emergency 

Management, Regulations 

Implementation Division, 1200 

Pennsylvania Avenue NW, Washington, 

DC 20460–0002, Mail Code 5104A, or 

visit the Office of Emergency 

Management website at http://

www.epa.gov/oem/. 

SUPPLEMENTARY INFORMATION: The 

contents of this preamble are: 

I. General Information 

II. Entities Potentially Affected by This 

Proposed Rule 

III. Statutory Authority and Delegation of 

Authority 

IV. Background 

V. This Action 

A. Monitoring the Use of Dispersants 

B. Information on Dispersant Application 

C. Water Column Sampling 

D. Oil Distribution Analyses 

E. Ecological Characterization 

F. Immediate Reporting 

G. Daily Reporting 

VI. Overview of New Rule Citations 

VII. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act (PRA) 

C. Regulatory Flexibility Act (RFA) 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Environmental 

Justice (EJ) 

K. Congressional Review Act (CRA) 

Part 300—National Oil and Hazardous 

Substances Pollution Contingency Plan 

I. General Information 

In April 2010, the Deepwater Horizon 

underwater oil well blowout discharged 

significant quantities of oil into the Gulf 

of Mexico. The blowout discharged oil 

from one mile below the sea surface. 

Approximately one million gallons of 

dispersants over a three-month period 

were deployed on surface slicks over 

thousands of square miles of the Gulf, 

and approximately three quarters of a 

million additional gallons of dispersants 

were, for the first time, injected directly 

into the oil gushing from the well riser. 

This raised questions about the 

challenges of making dispersant use 

decisions in response operations for 

certain atypical dispersant use 

situations. EPA is establishing new 

monitoring requirements under Subpart 

J of the National Oil and Hazardous 

Substances Pollution Contingency Plan 

(NCP) to address these challenges. 

Specifically in this action, the Agency 

establishes monitoring requirements for 

dispersant use in response to major 

discharges and/or certain dispersant use 

situations: Any subsurface use of 

dispersant in response to an oil 

discharge, surface use of dispersant in 

response to oil discharges of more than 

100,000 U.S. gallons occurring within a 

24-hour period, and surface use of 

dispersant for more than 96 hours after 

initial application in response to an oil 

discharge. These new requirements are 

intended to address the challenges of 

atypical dispersant use situations, 

including those identified during 

Deepwater Horizon. 

EPA estimates industry may incur a 

total incremental cost of approximately 

$32,000 to $3.0 million annually. Note 

that the annualized cost is the same for 

both the 3% and 7% discount rates 

because the cost is the same every year 

prior to being annualized. This action 

does not impose significant impacts on 

a substantial number of small entities. 

The Regulatory Impact Analysis, which 

can be found in the docket, provides 

more detail on the cost methodology 

and benefits of this action. 


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COST OF THE FINAL RULE

Annualized cost, 20 years 

Annualized at 

3% 

Annualized at 

7% 

Scenario 1—Low End .............................................................................................................................................. $32,124 $32,124 

Scenario 4—High End ............................................................................................................................................. 3,033,569 3,033,569 

II. Entities Potentially Affected by This 

Proposed Rule 

NAICS code Industrial category 

211120 ............................................ Crude Petroleum Extraction. 

211130 ............................................ Natural Gas Extraction. 

324110 ............................................ Petroleum Refineries. 

424710 ............................................ Petroleum Bulk Stations and Terminals. 

424720 ............................................ Petroleum and Petroleum Products Merchant Wholesalers (except Bulk Stations and Terminals). 

483111 ............................................ Deep Sea Freight Transportation. 

483113 ............................................ Coastal and Great Lakes Freight Transportation. 

486110 ............................................ Pipeline Transportation of Crude Oil. 

The list of potentially affected entities 

in the above table includes oil 

exploration and production industries 

with the potential for an oil discharge 

into navigable waters of the United 

States and adjoining shorelines. The 

Agency’s goal is to provide a guide for 

readers to consider regarding entities 

that potentially could be affected by this 

action. However, this action may affect 

other entities not listed in this table. If 

you have questions regarding the 

applicability of this action to a 

particular entity, consult the person(s) 

listed in the preceding section entitled 

FOR FURTHER INFORMATION CONTACT. 

III. Statutory Authority and Delegation 

of Authority 

Under sections 311(d) and 311(j) of 

the Clean Water Act (CWA), as amended 

by section 4201 of the Oil Pollution Act 

of 1990 (OPA), Public Law 101–380, the 

President is directed to prepare and 

publish the NCP for removal of oil and 

hazardous substances. Specifically, 

section 311(d)(2)(G) directs the 

President to include a Schedule 

identifying ‘‘(i) dispersants, other 

chemicals, and other spill mitigating 

devices and substances, if any, that may 

be used in carrying out the Plan, (ii) the 

waters in which such dispersants, other 

chemicals, and other spill mitigating 

devices and substances may be used, 

and (iii) the quantities of such 

dispersant, other chemicals, or other 

spill mitigating device or substance 

which can be used safely in such 

waters’’ as part of the NCP. The Agency 

has promulgated both the NCP, see 40 

CFR 300.1 et seq., and the schedule of 

dispersants as required by section 311 

(d)(2)(G), known as the NCP product 

schedule. See 40 CFR 300.900 et. seq. 

The President is further authorized to 

revise or otherwise amend the NCP from 

time to time, as the President deems 

advisable. 33 U.S.C. 1321(d)(3). The 

authority of the President to implement 

section 311(d)(2)(G) of the CWA is 

delegated to EPA in Executive Order 

12777 (56 FR 54757, October 22, 1991). 

Subpart J of the NCP establishes the 

framework for the use of dispersants 

and any other chemical agents in 

response to oil discharges (40 CFR part 

300 series 900). 

IV. Background 

In the United States and around the 

world, chemical agents are among the 

oil spill mitigation technologies 

available that responders may consider. 

Subpart J of the NCP sets forth the 

regulatory requirements for the use of 

chemical agents, including provisions 

for product testing and listing, and for 

authorization of use procedures. These 

requirements provide the structure for 

the On-Scene Coordinator (OSC) to 

determine in each case the waters and 

quantities in which dispersants or other 

chemical agents may be safely used in 

such waters. This determination is 

based on all relevant circumstances, 

testing and monitoring data and 

information, and is to be made in 

accordance with the authorization of 

use procedures, including the 

appropriate concurrences and 

consultations, found within the 

regulation. When taken together, the 

Subpart J regulatory requirements 

address the types of waters and the 

quantities of listed agents that may be 

authorized for use in response to oil 

discharges. EPA believes the wide 

variability in waters, weather 

conditions, organisms living in the 

waters, and types of oil that might be 

discharged requires this approach. 

The Deepwater Horizon underwater 

oil well blowout in 2010 raised 

questions about the challenges of 

making chemical agent use decisions in 

response operations, particularly for 

certain atypical dispersant use 

situations. To address these challenges, 

in 2015 the Agency proposed 

amendments to Subpart J of the NCP 

that included revisions to the existing 

product listing, testing protocols, and 

authorization of use procedures, as well 

as new provisions for dispersant 

monitoring. The proposed new 

monitoring provisions under Subpart J 

were focused on dispersant use in 

response to major oil discharges and on 

certain dispersant use situations in the 

navigable waters of the United States 

and adjoining shorelines. The proposed 

new monitoring provisions were also 

aimed at ensuring that the response 

community is equipped with relevant 

data and information to authorize and 

use the products in a judicious and 

effective manner. Final action on the 

proposed revisions to the product 

listing, testing protocols, and 

authorization of use procedures will be 

taken separately from this action. 

V. This Action 

This final action addresses 

environmental monitoring of dispersant 

use in response to major discharges and 

to certain dispersant use situations. 

Specifically, in this action, the Agency 

establishes monitoring requirements for 

any subsurface use of dispersant in 

response to an oil discharge, surface use 


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of dispersant in response to oil 

discharges of more than 100,000 U.S. 

gallons occurring within a 24 hour 

period, and surface use of dispersant for 

more than 96 hours after initial 

application in response to an oil 

discharge. The discussion below 

explains the specific requirements and 

also summarizes and responds to public 

comments received on the proposal. 

A. Monitoring the Use of Dispersants 

The goal of establishing a Schedule 

under the NCP is to protect the 

environment from possible damage 

related to spill mitigating products used 

in response to oil discharges. The new 

monitoring requirements for certain 

discharge situations in this action 

supplements the existing regulatory 

provisions under Subpart J which 

already include test data and 

information requirements for chemical 

agents as well as procedures for 

authorizing the use of those agents to 

respond to oil discharges and threats of 

discharge. 

The new § 300.913 establishes 

requirements for the responsible party 

to monitor any subsurface use of 

dispersant in response to an oil 

discharge, surface use of dispersant in 

response to oil discharges of more than 

100,000 U.S. gallons occurring within a 

24 hour period, and surface use of 

dispersant for more than 96 hours after 

initial application in response to an oil 

discharge, and to submit a Dispersant 

Monitoring Quality Assurance Project 

Plan (DMQAPP) to the OSC. The 

requirements are established for the 

responsible party as they operate in 

those environments where applicable 

discharges may occur and should be in 

the best position to monitor the 

response. The Agency removed 

language included in the proposal that 

specified these actions were to be taken 

‘‘As directed by OSC . . .’’. The 

clarification in this action is 

unnecessary as 33 U.S.C. 1321 and 

§ 300.120 of the NCP already establish 

the OSC’s oversight role over the 

responsible party. The Agency has also 

changed language associated with the 

DMQAPP to remove the proposed ‘‘for 

approval’’ qualifier in this final action. 

The change is to better reflect that the 

requirement to develop the DMQAPP is 

directed at the responsible party, and 

that the provision is not intended to 

establish a DMQAPP approval timeline 

for the OSC relative to dispersant use. 

Rather, the DMQAPP submission is 

intended to provide the OSC, and other 

agencies with NCP responsibilities, with 

a better understanding of the monitoring 

data to inform dispersant use decisions. 

The OSC may request that response 

support agencies provide feedback on 

the submitted DMQAPP and has the 

discretionary authority to require the 

responsible party to address any 

concerns associated with it. The 

responsible party is required to 

implement the new monitoring 

requirements when these dispersant use 

conditions are met, and for the duration 

of dispersant operations. The 

monitoring and data submissions that 

serve as the basis of this rule were 

established in the 2013 National 

Response Team (NRT) Environmental 

Monitoring for Atypical Dispersant 

Operations document. The Agency is 

aware that industry and OSROs have 

been preparing to monitor dispersant 

use this rule since the issuance of the 

NRT guidance document in 2013. The 

Agency encourages the continuation of 

planning and preparedness efforts and 

continues to support these efforts with 

our interagency partners. 

Subpart J of the NCP is intended to 

provide tools that support planning for 

and responding to oil discharges. To 

this end, the monitoring requirements 

for certain discharge situations 

promulgated in this final rule serve as 

a complement to the existing regulatory 

approach under Subpart J. When 

dispersants are applied in response to 

an oil discharge, environmental field 

monitoring data can support decisionmaking in dispersant use operations by 

gathering site-specific information on 

the overall effectiveness, including the 

transport and environmental effects of 

the dispersants and the dispersed oil. 

Environmental field monitoring data is 

at the core of any response, as without 

it the extent of the problem cannot be 

evaluated nor can a path forward for an 

appropriate response be established. 

The purpose of monitoring subsurface 

application is to characterize the 

dispersed oil, follow the plume integrity 

and transport with the underwater 

current, and identify and assess the 

potential adverse effects from the 

dispersed oil. Product testing conducted 

under standardized laboratory 

conditions is useful for comparison 

between different products. However, 

standardized laboratory conditions do 

not necessarily reflect field conditions. 

Monitoring of agents in the field informs 

the OSC and support agencies on the 

overall effectiveness of dispersant use, 

including the environmental effects and 

transport of dispersed oil. These new 

monitoring requirements, in 

conjunction with the existing testing 

and information requirements for 

chemical agents, and the procedures for 

authorizing the use of those agents, 

serve to protect the environment from 

possible damage related to spill 

mitigating products used. 

1. General 

Several Non-Governmental 

Organizations (NGO), private citizens, 

and local, state, and federal government 

agencies generally supported the 

proposed new monitoring requirements, 

with some also requesting some 

clarifications. A commenter stated that 

while they agree with the concept of 

requiring monitoring for dispersant use, 

the current language undermines the 

contingency planning process and 

illegally assigns responsibilities to the 

OSC and the responsible party. The 

commenter stated this usurps authority 

from all other agencies, tribes and the 

public, which they see as a breach of the 

responsibilities of the federal 

government to protect public trust 

resources. 

The Agency agrees with commenters 

expressing support for this final action. 

The Agency disagrees with the 

comments that this action undermines 

the contingency planning process and 

illegally assigns responsibilities to the 

OSC and the responsible party. The EPA 

acknowledges the importance of 

effective contingency planning to the 

achievement of a timely and effective 

response. Planning and preparedness 

provisions are currently addressed 

under Subpart C of the NCP or as 

codified in regulations implementing 

CWA 311(j)(5) authorities as delegated 

to other NRT member agencies by E.O. 

12777. The Agency is amending the 

proposed language in the opening 

paragraph of the monitoring section to 

clarify the new provisions are for the 

responsible party to implement. EPA 

disagrees with comments that state the 

structure of the new monitoring 

requirements usurps other governmental 

authorities or constitutes a breach of 

responsibilities of the federal 

government to protect public trust 

resources. The NCP designates the OSC 

as the person who is authorized to 

direct response efforts and to coordinate 

all other efforts at the scene of a 

discharge, including the new 

monitoring requirements. The NCP 

designates those Agencies providing the 

OSC for a response, including 

designating USCG to provide the OSC 

for oil spills into or threatening the 

coastal zone. See, e.g., 40 CFR 300.120. 

The NCP requires that the OSC ensure 

that the natural resource trustees are 

promptly notified in the event of any 

discharge of oil to the maximum extent 

practicable as provided in the Fish and 

Wildlife and Sensitive Environments 

Plan annex to the Area Contingency 

Plan (ACP) for the area in which the 


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1See 33 U.S.C. 1321(c); See also 40 CFR 300.120, 

40 CFR 300.305. 

discharge occurs. The NCP also directs 

the OSC and the trustees to coordinate 

assessments, evaluations, investigations, 

and planning with respect to 

appropriate removal actions, including 

the OSC consulting with the affected 

trustees on the appropriate removal 

action to be taken. Finally, none of new 

requirements in this action in any way 

limit current existing NCP authorities, 

but rather they inform the OSC and 

facilitate compliance with regulatory 

responsibilities. 

Several commenters supported the 

proposed amendments and suggested 

the monitoring requirements be 

extended to all products listed on the 

Product Schedule. Another commenter 

expressed similar concerns, stating that 

monitoring should occur anytime any 

product is used during a response 

activity. The commenter suggested these 

additional requirements for product 

effectiveness data would then be 

available for future releases, allowing 

for a refined set of response options. 

Another commenter stated that EPA 

should include language indicating that 

the new monitoring requirements are a 

minimum and that additional 

monitoring may be required based on 

conditions, dispersant type, and 

location. A commenter also 

recommended that, at a minimum, the 

requirements include monitoring of 

public health effects following the 

dispersant application. 

The Agency interprets the specific 

requirements set forth in this final 

action as the minimum set of 

monitoring activities expected during a 

response involving the atypical 

dispersant use conditions specified. 

However, the Agency does not believe it 

is necessary to amend regulatory text for 

this purpose. The new requirements in 

no way impede the existing OSC 

authority 1 to direct the responsible 

party to conduct additional monitoring 

if deemed necessary due to incidentspecific circumstances including 

location, oil type, or conditions of use. 

EPA notes that incident-specific 

circumstances may extend beyond the 

examples provided. The incidentspecific data gathered through these 

new monitoring requirements, in 

conjunction with the OSC authority to 

direct additional monitoring, offers 

flexibility in accounting for differences 

in regional environments that may have 

the potential to impact any discharge 

situation. The USCG provides a 

designated OSC for oil discharges into 

or threatening the coastal zone as per 40 

CFR 300.120. The OSC authorizes the 

use of chemical agents in accordance 

with Subpart J and other applicable 

provisions of the NCP. 

The Agency reiterates that the new 

provisions are focused on 

environmental monitoring and are 

applicable only to the following atypical 

dispersant use situations: any 

subsurface use of dispersant in response 

to an oil discharge, surface use of 

dispersant in response to oil discharges 

of more than 100,000 U.S. gallons 

occurring within a 24-hour period, and 

any surface use of dispersant for more 

than 96 hours after initial application in 

response to an oil discharge. However, 

these new requirements in no way 

preclude the OSC from directing the 

monitoring of any substance, including 

chemical agents used, or their use 

within different time frames than those 

listed above, as part of the existing 

authorities set forth in the NCP. The 

Agency is clarifying the applicability 

provisions of the monitoring 

requirements relative to the duration of 

their implementation. Specific to 

subsurface application of dispersants, 

the Agency is offering language further 

clarifying the monitoring provisions are 

to be implemented for the entire 

duration of the subsurface dispersant 

use. For dispersant application on the 

surface in response to oil discharges 

situations of greater than 100,000 U.S. 

gallons occurring within a 24-hour 

period, the monitoring provisions are to 

be implemented as soon as possible for 

the entire or remaining duration of 

surface dispersant use, as applicable. 

Finally, for any dispersant used on the 

surface for more than 96 hours after 

initial application, the new monitoring 

provisions in this action are to be 

implemented for the remaining duration 

of surface dispersant use, consistent 

with the 2013 National Response Team 

(NRT) Environmental Monitoring for 

Atypical Dispersant Operations 

document. Additional discussion 

regarding this clarifying language is 

found in Section C of this preamble— 

Water Column Sampling. 

While the new provisions established 

in this action are specific to 

environmental monitoring, the Agency 

notes there are other impacts potentially 

resulting from an oil discharge and 

associated response operations that are 

addressed under different provisions of 

the NCP. Of note, the OSC initiates a 

preliminary assessment as per the NCP. 

This preliminary assessment is 

conducted using available information 

and is supplemented where necessary 

and possible by an on-scene inspection. 

40 CFR 300.305(a)–(b). The preliminary 

assessment undertaken by the OSC in 

accordance with 40 CFR 300.305 

includes an evaluation of the threat to 

public health or welfare of the United 

States or the environment. 

A commenter suggested that for oil 

spill events where product 

preauthorization has not been granted, 

the rule should require that 

authorization of use be contingent on 

the Area Committee having a current 

Quality Assurance Project Plan (QAPP) 

approved by the RRT, NRT, and 

federally recognized Tribal 

representatives for the collection and 

reporting of all environmental data as 

part of the preauthorization plan. The 

commenter further suggested 

authorization be contingent on the 

Natural Resource Trustees having 

completed baseline ecosystem studies in 

the area impacted by the spill. Another 

commenter recommended that the 

development, approval, and update 

process for the QAPP be moved under 

the provisions for authorization of 

chemical agent use. They also suggested 

that withdrawal of concurrence, 

regarding product use following 

protocols also under authorization of 

use provisions, would mean that use of 

a product would cease until 

concurrence was reestablished. 

A commenter proposed that the 

Natural Resource Trustees should select 

and manage peer-reviewed scientific 

studies that implement the approved 

QAPP for spills where the 

preauthorization conditions for product 

use are met. The commenter suggested 

the Natural Resource Trustees seek 

concurrence from the Department of 

Labor/OSHA and Department of Human 

Health and Services/CDC 

representatives to the RRT, federally 

recognized Tribal representatives, and 

the RRT representative from the state(s) 

with jurisdiction over waters and 

adjoining shorelines within the 

geographic area impacted for these 

scientific studies. Other commenters 

generally suggested that the proposed 

requirements ensure peer-review as part 

of the monitoring process. 

The Agency recognizes that any 

monitoring to be conducted should 

follow a QAPP and has included new 

provisions to that effect. The Agency is 

modifying the provision by specifically 

requiring a DMQAPP to avoid confusion 

with the existing definition of a QAPP 

in the NCP. Further, given that the 

monitoring requirements are directed at 

the responsible party, the Agency 

believes it is most appropriate for the 

responsible party to develop a DMQAPP 

covering the environmental data 

collection, which includes quality 

assurance documentation. The 

DMQAPP developed by the responsible 

party is to be submitted to the OSC to 


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allow for a better understanding of the 

monitoring data. The Agency 

encourages the use of the guidance in 

Section 4.0 Quality Assurance Project 

Plan of the 2013 NRT Environmental 

Monitoring for Atypical Dispersant 

Operations document for preparation of 

the DMQAPP. EPA also encourages the 

RP to develop a DMQAPP, to the 

maximum extent possible, as part of the 

RP’s response planning to facilitate 

monitoring preparedness among other 

members of the response community. 

The OSC has the expertise of the 

Scientific Support Coordinator (SSC) 

and other pertinent response agencies 

available to provide feedback on the 

submitted DMQAPP, as well as the 

discretionary authority to require the 

responsible party to address any 

concerns raised. For oil discharges in 

the coastal zone it is National Oceanic 

and Atmospheric Administration 

(NOAA) that generally provides the 

SSC. The Agency disagrees that these 

new monitoring provisions cannot be 

implemented without having a 

DMQAPP specifically included in the 

applicable ACP. Likewise, 

implementation of the new monitoring 

requirements has no impact on baseline 

ecosystem studies conducted by the 

Natural Resource Trustees. The Agency 

notes that the roles and responsibilities 

of the Natural Resource Trustees are 

delineated under the current NCP, and 

that commenters’ recommendations 

specific to a DMQAPP evaluation by the 

Natural Resource Trustees to select and 

manage peer-reviewed scientific studies 

are outside the scope of this action. 

Similarly, issues regarding authorization 

of chemical agent use are outside of the 

scope of this action. 

A commenter supported the proposed 

monitoring requirements but suggested 

they include establishing baseline 

conditions prior to product application. 

Another commenter also suggested the 

requirements include pre-application 

monitoring of biological resources. A 

commenter suggested the concept of 

short-term damage assessments be 

included in this section, including rapid 

characterization of vulnerable aquatic 

species and habitats, and potential 

impacts to public health. Similarly, 

commenters also recommended longerterm monitoring and damage assessment 

activities as part of these new 

requirements; a commenter stated that 

monitoring should occur for the 

duration of the response and until the 

product is no longer detected in the 

water. Another commenter suggested 

that effects of dispersants on aquatic 

organisms may take longer to manifest 

themselves than the duration of 

monitoring that occurs during a spill 

response and therefore suggested that 

monitoring continue for several months 

following the dispersant application to 

allow for the assessment of both acute 

and chronic effects on fish and other 

species. 

EPA agrees with commenters who 

requested that the new monitoring 

requirements also include site-specific 

baseline monitoring, prior to application 

of dispersant, and is amending the 

proposed rule text to reflect this change 

in the final rule. The Agency believes 

this a rational and necessary addition 

since an understanding of baseline 

conditions is required for understanding 

the effects of dispersants in a specific 

area. The Agency believes that baseline 

monitoring will provide pre- and postdispersant application data to better 

evaluate the effects, including physical 

dispersion, of the dispersants. Further 

details on this change to the proposed 

requirements is found in the Water 

Column Sampling discussion in this 

preamble. This final action also 

recognizes the need for ecological 

characterization. The new monitoring 

provisions include requirements for the 

responsible party to characterize the 

ecological receptors (e.g., aquatic 

species, wildlife, and/or other biological 

resources), their habitats, and exposure 

pathways that may be present in the 

discharge area. Specific comments on 

these new provisions are found in the 

Ecological Characterization discussion 

in this preamble. The Agency notes that 

the new monitoring provisions are for 

ecological monitoring of atypical 

dispersant use operations subject to this 

regulatory action (i.e., any subsurface 

dispersant use, prolonged surface 

dispersant use, and surface dispersant 

use in response to major discharges). 

Other potential impacts from an oil 

discharge and from other associated 

response operations are addressed 

under different provisions of the NCP. 

The OSC initiates a preliminary 

assessment under the NCP. This 

preliminary assessment is conducted 

using available information and is 

supplemented where necessary and 

possible by an on-scene inspection. The 

preliminary assessment includes an 

evaluation of the threat to public health 

or welfare of the United States or the 

environment. 

The Agency recognizes that some 

effects of dispersant use on the aquatic 

ecosystem may take longer to manifest 

than the duration of dispersant 

application or the monitoring time 

frames during a response. However, the 

new field monitoring provisions are 

designed to support and inform 

operational decisions by gathering sitespecific information on the overall 

effectiveness, including the transport 

and environmental effects of the 

dispersant and the dispersed oil. 

Monitoring the overall effectiveness of 

dispersant use in the field provides the 

RRT member agencies with concurrence 

and consultation roles with information 

for operational decision making during 

atypical dispersant applications. 

Adverse effects on ecological 

receptors from exposures to dispersant 

use depend on the length of time and 

concentration of the exposure, which 

are dependent on the transport of the 

dispersed oil. Given that each oil 

discharge represents a unique situation, 

the Agency believes comprehensive 

monitoring is important for those 

discharge situations which are 

addressed in this final action. This 

monitoring data will enhance the 

information available for an effective 

response without delaying the use of 

dispersants. The Agency believes that 

comprehensive monitoring in certain 

discharge situations is necessary to 

determine the overall effectiveness of 

dispersants and should extend beyond 

the initial dispersant application to 

include the transport and potential 

environmental effects of the dispersant 

and dispersed oil in the water column. 

While all the data collected for 

dispersant operations purposes may be 

made available to Natural Resource 

Damage Assessment (NRDA) personnel 

as soon as practicable, the new 

monitoring requirements are intended to 

inform operational decision-making 

specific to atypical dispersant use; use 

of collected data in the NRDA process 

is incidental to this rulemaking. The 

NRDA data gathering efforts apply more 

broadly than just to dispersant use as 

part of the response. 

A commenter generally supported the 

concept of monitoring following 

dispersant use and recommended any 

monitoring data generated during a 

response acknowledge the uncertainty 

associated with the difficulty in 

estimating the effectiveness of 

dispersant actions in the field. A 

commenter recommended that EPA 

develop a set of standards for assessing 

dispersant application monitoring data 

in the field to supplement and validate 

results from laboratory-based studies. 

The Agency agrees that because of the 

nature of the operations, a certain 

degree of uncertainty associated with 

monitoring data generated during a 

response is to be expected. The Agency 

believes that the requirement for the 

responsible party to develop and submit 

a DMQAPP will help address some of 

those uncertainties. The Agency expects 

that the DMQAPP will address sample 


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collection methodology, handling, chain 

of custody, and decontamination 

procedures to ensure the highest quality 

data possible will be collected and 

maintained. The Agency disagrees that 

it should develop a set of standards for 

assessing dispersant application 

monitoring data in the field to 

supplement and validate results from 

laboratory-based studies. Product testing 

conducted under standardized 

laboratory conditions is useful for 

comparison between different products. 

However, standardized laboratory 

conditions do not necessarily reflect 

field conditions. The monitoring 

requirements in this final action are 

intended to supplement and 

compliment SMART procedures, as 

applicable, and inform the OSC and 

support agencies on the overall 

effectiveness of dispersant use for 

decision-making in the response. 

A commenter expressed concerns that 

the proposed requirements may not 

account for regional differences, which 

would be dealt with more effectively at 

the regional level, as opposed to the 

national level. This commenter also 

requested clarification on the 

distinction between dispersant efficacy 

and toxicity. The commenter suggested 

the reference to ‘‘overall effectiveness’’ 

is confusing and should be revised to 

clearly address both the effectiveness 

and toxicity of the dispersant and 

dispersed oil. The commenter also 

suggested that local field efficacy testing 

be conducted prior to dispersant use to 

understand site-specific conditions and 

that efficacy testing be conducted as 

outlined in the Special Monitoring of 

Applied Response Technologies 

(SMART) Tier I, Tier II, and Tier III 

protocols during the application 

monitoring. The commenter 

recommended that, if this type of 

monitoring is not possible, dispersant 

use be considered on a case-by-case 

basis as outlined under the regulatory 

provisions for authorization of chemical 

agent use. 

The Agency again notes the OSC has 

authority to direct additional 

monitoring and data collection beyond 

that which is specified in the new 

requirements, including for dispersant 

use situations outside the scope of the 

new provisions. This may include local 

field efficacy testing prior to dispersant 

use to better understand and account for 

site-specific conditions in operational 

decision-making. While the SMART 

protocols may be utilized in predeployment field testing and as part of 

the overall response, the atypical uses of 

dispersant during a response that are 

addressed in this action were neither 

envisioned nor addressed in the existing 

SMART monitoring program. The 

requirements in this final action follow 

recommendations from the 

Environmental Monitoring for Atypical 

Dispersant Operations: Including 

Guidance for Subsea Application and 

Prolonged Surface Application 

developed by NRT member agency 

representatives in 2013 and focus on 

monitoring atypical use of dispersants 

during an oil discharge in order to 

provide data for operational response 

decision-making. Further details on the 

SMART protocols can be found in the 

Field monitoring to support operational 

decisions discussion in this preamble. 

A commenter also requested 

clarification on the statement suggesting 

that subsurface dispersant application 

close to the release source reduces 

environmental impacts. They requested 

elaboration on the specifics of this 

statement in the context of the 

discussions of dispersant harm to 

aquatic organisms found in other places 

in the proposed rule. The commenter 

suggested elaborating on the language, 

or if there is inherent uncertainty, to 

allow RRTs to participate in research or 

testing associated with preauthorization of dispersant use requests. 

The proposed rule preamble at 80 FR 

3394 states: ‘‘Equipment is being 

contemplated to inject dispersants 

subsurface, directly into the oil near the 

source of the discharge. This type of 

application is intended to minimize 

dispersant dilution in the water before 

the dispersant has had an opportunity to 

interact with the oil. This application 

approach that is closer to the source is 

expected to reduce potential adverse 

environmental consequences from the 

use of excessive quantities of 

dispersants. However, applying 

dispersant to an oil discharge does not 

result in the physical recovery of oil 

from the environment. Instead, 

dispersing oil increases the potential 

exposure of aquatic organisms to the 

dispersant-oil mixture, at least 

transiently, and subsurface application 

has the potential to more immediately 

and effectively increase these exposures 

near the discharge.’’ EPA disagrees with 

the commenter that clarification is 

needed on the cited statement, as the 

commenter had only cited a portion of 

the full statement. When taken in its full 

context, the statement is highlighting 

that this new subsurface dispersant 

application approach is intended to 

reduce the risk of using excessive 

quantities of dispersants. The full 

statement recognizes that dispersing oil 

does not remove it from the 

environment and that in some instances 

subsurface dispersant use has the 

potential to increase exposures near the 

discharge. The Agency recognizes the 

inherent uncertainties with a subsurface 

application approach, which is an 

integral part of the basis for the new 

monitoring requirements in this final 

action. For pre-authorization of 

dispersant use requests, the final action 

does not prevent the RRT from 

establishing additional criteria to 

address incident-specific concerns 

beyond those requirements in the final 

rule, or from establishing incidentspecific criteria for those situations not 

covered in the final rule. RRT 

authorities and responsibilities are set 

forth in the NCP and are outside the 

scope of this action. 

Some commenters further advocated 

making all monitoring results and 

information publicly available; some 

commenters suggested daily reporting 

and public notification protocols and 

that results of dispersant monitoring 

performed during the Deepwater 

Horizon oil spill response be released to 

provide an example of the types of 

information that can be obtained from 

existing methods and technologies. 

The final action includes 

requirements for the responsible party 

to provide reporting to the OSC, 

including daily reporting of the 

monitoring data results. EPA expects 

that daily reporting would be reflective 

of an operational schedule based upon 

a 24-hour time period. Further details of 

those requirements are found in the 

Immediate Reporting and Daily 

Reporting discussions in this preamble. 

Regarding public notification protocols, 

EPA notes that the OSC directs response 

efforts and coordinates all other efforts 

at the scene of a discharge, including 

public information and community 

relations. See 40 CFR 300.120. The NCP 

provides instruction to the OSC on 

ensuring all appropriate public and 

private interests are kept informed and 

that their concerns are considered 

throughout a response. See 40 CFR 

300.155. The OSC public 

communications authorities under the 

NCP are outside the scope of this action. 

The Agency worked with Federal 

interagency partners in developing the 

2013 NRT Environmental Monitoring for 

Atypical Dispersant Operations 

guidance, which includes examples of 

the types of information that can be 

obtained from relevant methods and 

technologies, and which serves as a 

basis for this action. Additionally, while 

the Agency did incorporate lessons 

learned from dispersant use operations 

during the Deepwater Horizon oil spill 

into this final action, the new 

monitoring requirements are 

performance based and focused on 

information requirements. The Agency 


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believes this approach provides the 

opportunity to consider relevant 

technologies and to capture advances in 

technologies. 

A commenter expressed concerns 

over proposed language that seems to 

suggest that EPA views comprehensive 

and quantitative monitoring of 

dispersant effectiveness at sea as a 

feasible proposition. This commenter 

stated that currently, this type of 

monitoring is not technically possible 

and suggested that the word 

‘‘comprehensive’’ be replaced with the 

word ‘‘adaptive’’ throughout this 

section. The commenter noted that this 

change would allow decisions related to 

dispersant use to be revisited as 

circumstances surrounding the release 

change. 

The Agency disagrees that 

comprehensive and quantitative 

monitoring of dispersant effectiveness at 

sea is not currently technically possible. 

The requirements set forth in this action 

are informed by lessons learned during 

the Deepwater Horizon response and are 

consistent with the 2013 NRT 

Environmental Monitoring for Atypical 

Dispersant Operations guidance. 

Further, the Agency disagrees that the 

narrative describing the monitoring 

requirements should replace the term 

‘‘comprehensive’’ with the term 

‘‘adaptive.’’ The commenter stated that 

describing the monitoring requirements 

as ‘‘adaptive’’ would allow decisions 

related to dispersant use to be revisited 

as circumstances surrounding the 

release change. The Agency disagrees 

that characterizing the specific 

regulatory provisions in this action as 

comprehensive would in any way 

preclude the OSC to adapt operational 

decisions based on the monitoring data. 

The Agency is describing the new 

monitoring requirements as 

comprehensive because they go beyond 

the initial dispersant application to also 

include the transport and environmental 

effects of the dispersant and dispersed 

oil in the water column. 

A commenter requested that EPA 

provide additional supporting 

references for the proposed 

requirements. The commenter suggested 

that supporting references could include 

peer-reviewed articles published since 

2012 that examine the use of dispersants 

during the Deepwater Horizon response 

or the 48 studies initiated by 

government agencies cited in a 2012 

U.S. Government Accountability Office 

(GAO) report. They also suggested that 

reference be made to the 2011 Federal 

On-Scene Coordinator (FOSC) 

Deepwater Horizon Operational Science 

Advisory Team (OSAT) Report, which 

indicated that there were no identifiable 

harmful impacts to any marine life 

following dispersant applications. The 

commenter requested that new 

monitoring requirements for the 

dispersant use situations applicable to 

this action be reconsidered in the 

context of recent scientific research. A 

commenter requested EPA review recent 

publications that suggest the 

effectiveness of dispersant use, citing 

results from monitoring and testing 

during the Deepwater Horizon oil spill 

response. Further, a commenter stated 

that the new monitoring requirements 

are unnecessary until EPA can provide 

published results indicating harm from 

dispersant use to the environment or 

public health. Similarly, a commenter 

stated that if there is no intention to 

include recent research in the proposed 

update, the new requirements should 

not be promulgated. 

The Agency believes it has 

demonstrated the need for these new 

monitoring requirements to inform 

operational decision-making specific to 

atypical dispersant use. As already 

highlighted, the new requirements are 

consistent with the 2013 NRT 

Environmental Monitoring for Atypical 

Dispersant Operations guidance, which 

addresses the dispersant use situations 

addressed by this action. Further, the 

Agency disagrees that recent scientific 

research would necessitate 

reconsidering the minimum set of 

monitoring requirements for the atypical 

dispersant use situations as specified in 

this action. EPA recognizes 

uncertainties still surrounding 

dispersant use, particularly for the 

atypical dispersant use situations 

contemplated since their use during the 

Deepwater Horizon oil spill. EPA 

continues to participate in scientific 

efforts with scientists and researchers 

from industry, academia, and public 

organizations, such as the multi-year 

State-of-the-Science for Dispersant Use 

in Arctic Waters effort sponsored by 

NOAA though the Coastal Response 

Research Center, which continue to 

identify unknowns and uncertainties 

relative to this response technology. 

EPA also continues to actively 

participate as a standing member of the 

Interagency Coordinating Committee on 

Oil Pollution Research (ICCOPR), a 15- 

member Interagency Committee 

established by Title VII of the Oil 

Pollution Act of 1990 (Section 7001). 

EPA’s own research efforts and on-going 

engagement with the broader research 

community support the need for the 

new monitoring provisions established 

in this final action. Finally, the Agency 

notes the commenter’s request to 

recognize the 2011 Deepwater Horizon 

OSAT Report. The commenter did not 

specify which 2011 OSAT report. The 

February 10, 2011, OSAT report is a 

summary for fate and effects of remnant 

oil in the beach environment. The July 

8, 2011, report is an ecotoxicity 

addendum entitled ‘‘Summary Report 

for Sub-Sea and Sub-Surface Oil and 

Dispersant Detection: Ecotoxicity 

Addendum.’’ EPA’s understanding is 

that the OSAT reports focused on 

information to guide response actions 

and do not draw conclusions about 

long-term environmental impacts of the 

spilled oil. Specifically, the OSAT 

ecotoxicity addendum report states that 

its purpose was to provide the OSC with 

information on the remaining toxicity of 

released oil and dispersant to 

representative water column and 

sediment-dwelling organisms at the 

time the samples were collected and 

intended to inform the OSC regarding 

transition of nearshore activities from 

the emergency response phase to the 

long-term recovery and restoration 

phase. The new monitoring 

requirements promulgated in this action 

will serve to inform dispersant use 

decisions during a response by 

providing environmentally relevant data 

and information to the OSC and other 

Agencies with roles and responsibilities 

under the NCP where atypical 

dispersants are deployed. Under the 

NCP, the OSC directs the response 

consistent with provisions including 40 

CFR 300.120, 40 CFR 300.150, and 

Subpart D, which includes threats to the 

public health. 

The Agency acknowledges that 

scientific research continues regarding 

dispersant use in general and with 

respect to the Deepwater Horizon oil 

spill. The Agency disagrees with the 

commenter that the monitoring 

requirements should be removed 

because EPA did not include references 

that the commenter characterized as the 

numerous scientific, peer-reviewed 

publications published since May 2012 

in the 2015 preamble that the 

commenter stated to have examined the 

dispersant use during DWH. The 

commenter did not provide a list of 

references or examples as illustrations, 

nor included those that may be relevant 

to the monitoring provisions. The 

Agency believes that the new 

monitoring requirements will provide 

information and data to inform future 

response decisions for atypical 

dispersant use situations reflective of 

the Deepwater Horizon oil spill-type 

and other scenarios. Furthermore, these 

new monitoring requirements will 

provide information and data that 

address knowledge gaps identified in 


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the 2012 GAO report, ‘‘U.S. Government 

Accountability Office Report, Oil 

Dispersants, Additional Research 

Needed, Particularly on Subsurface and 

Arctic Applications,’’ which 

commenters also referenced. 

The Clean Water Act provides that the 

National Contingency Plan ‘‘shall 

include, but not be limited to, the 

following: . . . (F) Procedures and 

techniques to be employed in 

identifying, containing, dispersing, and 

removing oil and hazardous substances. 

(G) A schedule, prepared in cooperation 

with the States, identifying—(i) 

dispersants, other chemicals, and other 

spill mitigating devices and substances, 

if any, that may be used in carrying out 

the [NCP], (ii) the waters in which such 

dispersants, other chemicals, and other 

spill mitigating device and substances 

may be used, and (iii) the quantities of 

such dispersant, other chemicals, or 

other spill mitigating device or 

substance which can be used safely in 

such waters . . . .’’ In conjunction with 

the existing testing requirements, listing 

of agents, and authorization of use 

procedures, the promulgation of these 

new monitoring requirements provide 

data which can be used to inform the 

decision making of the OSC and of the 

other Agencies with roles and 

responsibilities under the NCP. The 

wide variability in waters, weather 

conditions, organisms living in the 

waters, and types of oil that might be 

discharged requires this combined 

approach. 

A commenter expressed concerns that 

in the event of a spill these new 

monitoring requirements may hamper 

response activities from occurring in a 

timely manner. They recommended that 

effectiveness monitoring be conducted 

as a set of tabletop exercises first, to 

determine whether the monitoring 

protocols are feasible. This commenter 

also requested recognition for other 

analytical options such as in-situ 

analytical techniques. 

The Agency disagrees with the 

premise that monitoring requirements 

could hamper response activities from 

occurring in a timely manner. The 

Agency notes the time frame for the 

deployment of subsurface dispersant 

injection equipment by vessels for 

offshore facilities is not expected to be 

different than the time frame for 

deploying monitoring equipment. 

Monitoring requirements should not 

delay or impede response actions 

related to the deployment of mechanical 

recovery, in-situ burning, or dispersantrelated equipment. The monitoring and 

data submissions that serve as the basis 

of this rule were established in the 2013 

NRT Environmental Monitoring for 

Atypical Dispersant Operations 

guidance document. The Agency is 

aware that industry and OSROs have 

been preparing for the requirements of 

this rule since the 2013 interagency 

signing of the NRT guidance document. 

This final action provides notice for a 

potential responsible party to identify 

and prepare for deployment of 

monitoring assets including identifying 

response personnel, equipment, and 

sampling materials. Potential 

responsible parties also have time to 

identify and plan for the need of 

alternative resources to account for 

events such as equipment failure, rather 

than wait until an incident occurs. The 

Agency encourages the continuation of 

planning and preparedness efforts and 

continues to support these efforts with 

our interagency partners. 

A commenter indicated that 

monitoring of dispersants in the coastal 

zone should be under the authority of 

the United States Coast Guard (USCG). 

This commenter suggested that the RRT 

and OSC should have decision-making 

authority as indicated in NRT’s 

Environmental Monitoring for Atypical 

Dispersant Operations and the SMART 

document. Another commenter stated 

that this section of the proposed rule 

should be consistent with, and pose no 

conflict to, the NRT guidance found in 

the 2013 Environmental Monitoring for 

Atypical Dispersant Operations 

document. 

The Agency recognizes OSC roles, 

responsibilities and authorities as 

described in the NCP, including USCG 

OSC roles and responsibilities in the 

coastal zone as described in 40 CFR 

300.120 and § 300.140. EPA has 

responsibilities under Subpart J of the 

NCP that apply to the use of chemical 

agents in the coastal and inland zones, 

including an authorization of use role as 

provided in 40 CFR 300.910 (states and 

other federal agencies also have 

responsibilities under this provision). 

The Agency acknowledges that the 

atypical dispersant use situations 

subject to the new monitoring 

requirements will likely be overseen by 

a USCG OSC. The President has 

delegated EPA the authority under CWA 

311(d) to revise or otherwise amend the 

NCP and to establish requirements for 

dispersants, other chemicals, and other 

spill mitigating devices and substances, 

which are found in Subpart J of the 

NCP. The Agency has structured the 

amendments to Subpart J of the NCP to 

include not only the testing and listing 

protocols, and the authorization of use 

procedures, but also the monitoring 

provisions to ensure agents are being 

used appropriately. The new monitoring 

requirements are consistent with 

existing RRT and OSC authorities and 

responsibilities under the NCP. Finally, 

the requirements set forth in this action 

are informed by lessons learned during 

the Deepwater Horizon oil spill and are 

consistent with the 2013 NRT 

Environmental Monitoring for Atypical 

Dispersant Operations guidance. 

The Agency acknowledges the 

recommendation to renumber the 

monitoring section but is not making 

this change because the numerical order 

of the provisions has no practical effect 

on the regulatory requirements. 

2. Roles and Responsibilities for 

Monitoring Operations 

Several commenters expressed 

concern specific to the requirements for 

the responsible party to monitor the use 

of dispersants under the direction of the 

OSC. A commenter stated that the 

responsible party should not oversee 

monitoring for impacts related to the 

spill for which they are responsible. 

Similarly, other commenters suggested 

the OSC select a qualified third party to 

be responsible for monitoring and water 

column testing processes during the 

response instead of the responsible 

party. Further, the commenters stated 

that the third party should be required 

to disclose any relationship with the 

responsible party to avoid potential 

conflicts of interest and suggested that 

the OSC oversee transparency in the 

monitoring and water quality testing 

processes. Commenters suggested that 

this third-party monitor should be 

acceptable to the OSC, EPA, Department 

of Interior (DOI) RRT representatives 

(potentially including DOC RRTs), as 

well as the responsible party. A 

commenter also suggested that because 

the QAPP will include DOI trust 

resources, it should be submitted and 

approved by DOI RRT representatives 

and the OSC. Commenters also suggest 

adding a timeline for submission and 

approval of the QAPP documentation. 

EPA recognizes commenters’ concerns 

regarding the responsible party 

conducting dispersant monitoring due 

to inherent conflicts of interest. The 

Agency notes that under the NCP the 

OSC coordinates, directs and reviews 

the work of the responsible party. See, 

e.g., 40 CFR 300.120. The Agency 

believes the responsible party must be 

prepared for and provide resources to 

gather data and information to inform 

decisions regarding dispersant use 

operations. The approach to this final 

action is consistent with the NCP 

response framework, taking advantage 

of the knowledge and geographic 

proximity of the responsible party as 

applicable, and allowing for the 

effective allocation of limited 


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governmental resources. Additionally, 

the new monitoring requirements in this 

final action do not, for example, 

preclude the OSC from seeking a 

qualified third party to conduct 

additional monitoring or testing, from 

requiring the responsible party to use a 

third party to conduct the monitoring or 

testing where the OSC deems it 

appropriate, or from seeking 

supplemental data and information 

separately. Similarly, the final rule does 

not preclude the consideration of thirdparty testing or test results. 

The Agency notes that the NCP 

already provides for the natural resource 

trustees’ roles relative to dispersant use. 

Further, this final rule does not amend 

any regulatory requirements or 

authorities, including EPA-delegated 

authorities under Subpart J, or regarding 

the OSC role to direct public and private 

spill response efforts, the Area 

Committee responsibilities for 

developing Area Contingency Plans, or 

the responsible party’s obligations for 

preparing Facility or Vessel Response 

Plans, as applicable. The NCP 

establishes the Regional Response 

Teams and their roles and 

responsibilities in the National 

Response System, including 

coordinating preparedness, planning, 

and response at the regional level. 

Nothing in this final action precludes 

OSC consideration of local interests and 

knowledge for effective allocation of 

resources, nor interferes with NCP 

established roles and responsibilities for 

response actions. The DMQAPP 

developed by the responsible party will 

be submitted to the OSC to provide 

context and allow for better 

understanding of monitoring data and 

information. The OSC has not only the 

expertise of the SSC available to assist 

with the data collected following the 

DMQAPP, it also has available within 

the existing NCP authorities the 

expertise of the respective state (as 

applicable), DOI RRT representatives 

and other pertinent agencies. The NCP 

designates the RRT as the appropriate 

regional mechanism for coordination of 

assistance and advice to the OSC during 

such response actions. As specified in 

the final regulatory text, the responsible 

party must submit a DMQAPP to the 

OSC covering the collection of 

environmental data within this section 

as part of implementing the monitoring 

requirements. The Agency again 

encourages planning and preparedness 

efforts and continues to support these 

efforts with our interagency partners. 

A commenter suggested that although 

the proposed rule requires the 

responsible party to conduct 

monitoring, these operations would be 

completed under the direction of the 

OSC. The commenter indicated that the 

NCP provides for a three-tiered 

approach, including the Federal 

government directing all public and 

private spill response efforts for certain 

types of spill events; Area Committees 

developing detailed, location-specific 

Area Contingency Plans; and vessel and 

certain facility owners and operators 

preparing Facility Response Plans. The 

commenter suggested that this type of 

tiered approach allows for Federal 

oversight without dismissing local 

interests and knowledge and enables the 

efficient allocation of limited resources 

for response actions. 

The Agency agrees that the USCG 

OSC generally oversees the responsible 

party during coastal zone response 

operations, which includes 

implementation of the new monitoring 

requirements. The new monitoring 

requirements fall within the existing 

NCP framework of federal government 

oversight through the OSC. The NCP 

serves as the federal government’s 

blueprint for responding to oil 

discharges or threats of discharge, 

ensuring national response capabilities 

and promoting coordination among the 

hierarchy of responders and 

contingency plans. The approach to this 

final action is consistent with the NCP 

response framework, taking advantage 

of the knowledge and geographic 

proximity of the responsible party as 

applicable, and allowing for the 

effective allocation of limited 

governmental resources. These new 

provisions of minimal monitoring 

requirements under Subpart J for 

specific atypical dispersant use 

situations are consistent with the 

existing NCP authorities and objectives. 

A commenter suggested that 

monitoring be required as directed by 

the OSC. The commenter suggested that 

every response is unique in terms of the 

type of spill and appropriate actions, 

and therefore, discretion should be 

given to the OSC to determine 

monitoring requirements. This 

commenter indicated that any 

monitoring requirements should be 

consistent with the phased approach to 

monitoring that is discussed in the 

SMART protocols. The commenter also 

pointed out that USCG Strike Teams 

have monitoring requirements and 

asked EPA for clarification related to the 

reasoning behind changing the existing 

monitoring process and oversight 

structure. 

The Agency agrees discretion needs to 

be afforded to the OSC to account for 

incident- specific circumstances in a 

response. This action specifies that the 

new monitoring requirements are to be 

implemented by the responsible party. 

The Agency notes that under the NCP 

the OSC has an established oversight 

role over the responsible party; the OSC 

continues to have authority to direct 

additional monitoring and data 

collection beyond that which is 

specified in the new requirements. This 

may include local field efficacy testing 

prior to dispersant use to better 

understand and account for site specific 

conditions in operational decisionmaking. While the SMART protocols 

may be utilized not only in predeployment field testing but also as part 

of the overall response, the atypical uses 

of dispersant during a response that are 

addressed in this action were neither 

envisioned nor addressed in the existing 

SMART monitoring program. The 

requirements in this final action follow 

recommendations from the 

Environmental Monitoring for Atypical 

Dispersant Operations developed by 

NRT member agency representatives in 

2013. The 2013 NRT guidance focuses 

on monitoring atypical use of 

dispersants during an oil discharge in 

order to provide data that will inform 

decision-making for dispersant use 

operations in a response. Further 

discussion on SMART protocols can be 

found in the Field monitoring to support 

operational decisions discussion in this 

preamble. 

The Agency recognizes OSC roles, 

responsibilities, and authorities as 

described in the NCP, including USCG 

OSC roles and responsibilities in the 

coastal zone as described in 40 CFR 

300.120 and 300.140, with additional 

clarification provided in previous 

Federal Register notices (e.g., 59 FR 

47389). EPA has responsibilities under 

Subpart J of the NCP that apply to the 

use of chemical agents in both the 

coastal and inland zones, including an 

authorization of use role as provided in 

40 CFR 300.910 (states and other federal 

agencies also have responsibilities 

under this provision). The Agency 

acknowledges that the atypical 

dispersant use situations subject to the 

new monitoring requirements will likely 

be overseen by a USCG OSC. The 

President has delegated EPA the 

authority under CWA 311(d) to revise or 

otherwise amend the NCP and to 

establish requirements for dispersants 

and other chemicals, and other spill 

mitigating devices and substances, 

which are found in Subpart J of the 

NCP. The Agency has structured the 

amendments to Subpart J of the NCP to 

include the testing and listing protocols, 

the authorization of use procedures, and 

the monitoring provisions to ensure 

agents are being used appropriately. The 


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new monitoring requirements are 

consistent with existing RRT and OSC 

authorities and responsibilities under 

the NCP. Finally, EPA is unaware of any 

regulatory requirements issued by the 

USCG Strike Teams regarding 

dispersant use monitoring. 

3. Field Monitoring To Support 

Operational Decisions 

Several commenters expressed 

concerns that the proposal does not 

effectively justify the additional 

monitoring requirements. These 

commenters believe the additional 

monitoring requirements could cause 

delays in response actions, preclude 

dispersant use, and result in additional 

environmental damages. Some 

commenters expressed concerns that the 

proposed rule may hinder timely 

response operations, as opposed to 

improve real-time decision-making. 

They suggested the monitoring 

requirements should be designed by the 

OSC to fit the needs of the given 

environment. 

The Agency disagrees with the 

premise that monitoring requirements 

could hamper response activities from 

occurring in a timely manner. The 

Agency notes the time frame for the 

deployment of subsurface dispersant 

injection equipment by vessels for 

offshore facilities is not expected to be 

different than the time frame for 

deploying monitoring equipment. The 

Agency reiterates the new monitoring 

provisions do not change current 

preparedness or planning regulatory 

requirements; the monitoring and data 

submissions that serve as the basis of 

this rule were established in the 2013 

NRT Environmental Monitoring for 

Atypical Dispersant Operations 

document. The Agency is also aware 

that industry and OSROs have been 

preparing for the requirements of this 

rule since the 2013 interagency signing 

of the referenced NRT guidance 

document. This final action provides 

notice for a potential responsible party 

to identify and prepare for deployment 

of monitoring assets including 

identifying response personnel, 

equipment, and sampling materials. 

Potential responsible parties also have 

time to identify and plan for the need 

of alternative resources to account for 

events such as equipment failure, rather 

than wait until an incident occurs. The 

Agency encourages the continuation of 

planning and preparedness efforts and 

continues to support these efforts with 

our interagency partners. Additionally, 

monitoring requirements should not 

delay or impede response actions 

related to the deployment of mechanical 

recovery, in-situ burning, or dispersantrelated equipment. 

Other commenters added that the 

proposed requirements deviate 

significantly from existing monitoring 

regimes from the NRT in its 

Environmental Monitoring for Atypical 

Dispersant Operations, which the 

commenters characterized as advocating 

for the adaptation of the SMART 

monitoring regimen. Some commenters 

requested that EPA adjust the language 

to require SMART Tier I efficacy 

monitoring for the first use of 

dispersants, followed by environmental 

impact monitoring no later than 96 

hours after the first application. 

Some commenters also suggested that 

the proposed rule goes beyond what is 

required by the NRDA. These 

commenters also stated that the new 

requirements appear to focus on the 

environmental effects of dispersant use 

rather than the health and safety of 

response workers. One commenter 

asked EPA to clarify that the primary 

objective of characterizing the efficacy 

of response agents is to protect response 

personnel health and safety. The 

commenters also suggested the OSC 

employ the Net Environmental Benefits 

Analysis (NEBA) structure to assess the 

overall benefits of dispersant use. 

Another commenter expressed concern 

about this type of monitoring informing 

response decision-making. Other 

commenters requested that EPA clarify 

between short-term monitoring result 

that must be disseminated extremely 

quickly and those that are part of a more 

comprehensive longer-term monitoring 

process. 

The new monitoring section is 

modeled after the 2013 NRT guidance 

document, Environmental Monitoring 

for Atypical Dispersant Operations, 

developed following the Deepwater 

Horizon oil spill and tailored to 

monitoring atypical dispersant use 

situations. These NRT guidelines 

specified that atypical use of dispersants 

during a response are not addressed in 

the existing SMART monitoring 

program. In addition to the criteria 

outlined in the NRT guidelines, the 

Agency included applicability criteria 

for the new monitoring requirements for 

situations where the surface use of 

dispersants is authorized in response to 

oil discharges of more than 100,000 U.S. 

gallons occurring within a 24-hour 

period. The Agency chose 100,000 U.S. 

gallons as a threshold criterion based on 

the NCP classification of major 

discharges to coastal waters. EPA 

combined this 100,000 U.S. gallons 

major discharge criterion with a 24-hour 

time frame, considering that a larger 

quantity of dispersant may be required 

in a short time frame for an incident of 

this scale. The applicability criteria in 

the final rule are consistent with the 

NRT Environmental Monitoring for 

Atypical Dispersant Operations 

guidelines. 

As noted in the proposed rule, the 

goal of establishing a Schedule under 

the NCP is to protect the environment 

from potential damage related to spill 

mitigating products used in response to 

oil discharges. This goal is consistent 

with past preambles related to Subpart 

J. For example, the 1994 NCP final rule 

(59 FR 47407) noted, ‘‘. . . EPA believes 

that Congress’ primary intent in 

regulating products under the NCP 

Product Schedule is to protect the 

environment from possible deleterious 

effects caused by the application or use 

of these products. In looking at the longand short-term effects on the 

environment of all spill mitigating 

devices and substances, EPA has 

concluded that chemical and 

bioremediation countermeasures pose 

the greatest threat for causing 

deleterious effects on the environment.’’ 

While EPA recognizes that worker 

health and safety are integral to any oil 

spill response, provisions for these 

specific concerns are found under 40 

CFR 300.150 of the NCP and are outside 

the scope of this action. 

EPA disagrees with commenters that 

the new provisions should require 

SMART Tier I efficacy monitoring for 

the first use of dispersants, followed by 

environmental impact monitoring no 

later than 96 hours after the first 

application. While EPA recognizes the 

application of SMART Tier I protocols 

for evaluating initial dispersant efficacy, 

these protocols are based on aerial 

visual assessments by trained observers 

or advanced remote sensing instruments 

flying over the oil slick. To help 

evaluate visual assessments, NOAA 

developed a Dispersant Application 

Observer Job Aid, which is a field guide 

for trained observers to promote 

consistency in identification of 

dispersed and undispersed oil, 

describing oil characteristics, and 

reporting this information to decisionmakers. The SMART protocols 

recognize that visual observations do 

not always provide confirmation that 

the oil is dispersed, and that dispersant 

operations effectiveness can be difficult 

to determine by visual observation 

alone. 

The SMART protocols do not monitor 

the fate, effects, or impacts of dispersed 

oil. The monitoring of atypical 

dispersant use necessitates specific 

considerations beyond those addressed 

by SMART. The 2013 NRT 

Environmental Monitoring for Atypical 


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Dispersant Operations recognizes such 

atypical uses of dispersant during a 

response are not addressed in the 

existing SMART monitoring program. 

Further, the SMART protocols do not 

apply to any subsurface dispersant 

application. EPA is unaware of any 

similar NRT-approved protocols or 

NOAA-developed job aids related to 

subsurface dispersant application. The 

new monitoring requirements in this 

final action are intended to supplement, 

not to replace, the SMART protocols. 

The new requirements recognize that 

SMART monitoring protocols are 

expected to have already been deployed 

in atypical dispersant use situations. 

While some monitoring requirements 

are included in the SMART Tier III 

protocol (e.g., turbidity, pH, 

Conductivity, Temperature), other 

requirements important to the 

understanding of dispersant 

effectiveness (e.g., in situ droplet size 

distribution) are not. 

A commenter noted that this action 

may be an opportunity to broaden the 

proposed requirements to cover all 

response approaches. Other commenters 

also suggested the RRT should have the 

ability to require field testing of a given 

approach prior to response action 

approval. A commenter expressed that 

this type of monitoring does inform 

response decision-making; the 

commenter requested that EPA clarify 

between short-term monitoring results 

that must be disseminated extremely 

quickly and those that are part of a more 

comprehensive longer-term monitoring 

process. 

While this action specifically 

addresses certain atypical dispersant 

use operations, the Agency notes the 

OSC continues to have authority to 

direct additional monitoring and data 

collection beyond that which is set forth 

in the new monitoring requirements. 

Under the NCP, the OSC has the 

authority to direct monitoring and data 

collection for any and all approaches 

utilized during a response. This may 

include field efficacy testing prior to 

dispersant use to better understand and 

account for site-specific conditions in 

operational decision-making. RRT 

authorities and responsibilities are set 

forth in the NCP and are outside the 

scope of this action. However, for preauthorization of dispersant use requests, 

the Agency notes that this final action 

does not prevent a RRT from 

establishing additional criteria to 

address incident-specific concerns 

beyond those requirements in the final 

rule, or from establishing incidentspecific criteria for those situations not 

covered in the final rule. 

Dispersants are not the only option for 

oil spill response, as other mitigation 

options are available that may lower the 

potential overall environmental damage. 

Decisions to use dispersants and other 

chemical agents used during a response 

are to be made in accordance with 

Subpart J of the NCP and all applicable 

statutes. Any environmental tradeoff 

methodologies for oil spill responses 

where dispersants and other chemical 

agents are considered must be in 

conformance with the statutory and 

regulatory authorities that govern their 

use. 

4. Criteria for Triggering Monitoring 

Requirements 

EPA received comments specific to 

the proposed thresholds or applicability 

criteria for triggering the monitoring 

requirements. A commenter indicated 

that although they agree with EPA’s 

proposal to include thresholds above 

which monitoring requirements would 

apply, they suggested that the spill rate 

and volume be reduced. The commenter 

recommended that the trigger 

applicability volume threshold for 

monitoring be set to a discharge of more 

than 50,000 U.S. gallons within 24 

hours and surface use of dispersants for 

more than 48 hours. Another 

recommended a lower release threshold 

of 21,000 gallons (500 barrels), and any 

dispersant use lasting more than 24 

hours. In contrast, other commenters 

requested further clarification, and yet 

others a more relaxed set of thresholds 

for comprehensive monitoring. A 

commenter suggested that the proposed 

release volume of 100,000 gallons be 

relaxed, stating there are other factors to 

consider that influence spill outcomes 

beyond the spill volume. Commenters 

also expressed concern regarding the 96- 

hour duration threshold requirement for 

dispersant use and suggested that 

especially for earlier life stages near the 

surface, a 96-hour exposure has the 

potential for adverse effects. Citing the 

information above, a commenter 

proposed a 24-hour threshold for 

comprehensive monitoring instead of 96 

hours. Finally, a commenter asked for 

clarification on the requirements for 

monitoring of dispersants use when the 

spill volume is less than 100,000 gallons 

in the first 24 hours or for dispersant 

use occurring over a period of less than 

96 hours. 

The Agency received support for 

establishing monitoring requirements, 

with commenters also offering opposing 

perspectives on the applicability 

thresholds that would trigger these 

requirements. The Agency agrees with 

the concept of monitoring the use of all 

chemical agents during a response; 

however, the monitoring requirements 

in this action apply specifically to 

certain atypical dispersant use 

situations. The Agency acknowledges 

some commenters’ support for the new 

monitoring requirements applying to 

any subsurface dispersant use in a 

response. The Agency considered the 

alternative threshold and applicability 

criteria some commenters offered for 

atypical surface dispersant uses: 50,000 

or 21,000 U.S. gallons within a 24-hour 

period and surface use of dispersants for 

more than 48 or 24 hours. Another 

commenter suggested that any enhanced 

monitoring beyond that required in the 

SMART protocols should commence 

within seven days. However, EPA 

disagrees with revising the proposed 

applicability thresholds for surface 

dispersant use, including those 

commenters who requested a more 

relaxed set of thresholds for the 

proposed discharge volume of 100,000 

U.S. gallons. 

While modeled after the 2013 NRT 

guidance, the Agency included the 

additional applicability criterion for the 

new monitoring requirements for 

situations where the surface use of 

dispersants is authorized in response to 

oil discharges of more than 100,000 U.S. 

gallons occurring within a 24-hour 

period. The Agency chose 100,000 U.S. 

gallons as a threshold criterion based on 

the NCP classification of major 

discharges to coastal waters. EPA 

combined this 100,000 U.S. gallons 

major discharge criterion with a 24hour 

time frame, considering that a larger 

quantity of dispersant may be required 

in a short time frame for an incident of 

this scale. The Agency believes the 

potential variability in response actions 

for an incident of this magnitude, 

including consideration of the time 

needed for deployment, merits this 

scenario being included as a trigger for 

applicability of the new monitoring 

requirement. 

The Agency recognizes that especially 

for earlier life stages near the surface, a 

longer exposure time frame has the 

potential for adverse effects. The 96- 

hour time frame in this action is based 

on 96 hours being a common exposure 

duration used in toxicological studies of 

dispersants. While recognizing that the 

24- and 48-hour time frames may also be 

used in toxicological studies, the 

Agency’s intent in proposing these 

specific monitoring requirements was to 

have them apply to atypical spill 

situations with the potential for larger 

amounts of dispersants being used. The 

Agency also disagrees with relaxing the 

time frame for the new requirements to 

begin monitoring within seven days, as 

the upper limit of that time frame would 


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be outside what the NRT has recognized 

as an atypical surface dispersant use 

situation. The Agency continues to 

believe that the applicability thresholds 

for both the quantities and durations for 

surface dispersant use as proposed serve 

to capture the potential for the broader 

ecosystem impacts resulting from the 

larger spills that are the focus of the new 

monitoring requirements. Finally, the 

applicability criteria in the final rule are 

consistent with NRT Environmental 

Monitoring for Atypical Dispersant 

Operations guidelines. 

A commenter indicated that the 

phrase ‘‘upon initiation and for the 

duration of subsurface dispersant use’’ 

can be misconstrued to mean that 

monitoring should be conducted at all 

times. They suggested that monitoring 

requirements be determined by the OSC 

given the potential variability in 

response actions. This would allow the 

OSC to determine the best timing for 

operational monitoring deployment. 

This commenter also stated that the 

volume and duration criteria for 

monitoring should be replaced with a 

single criterion that ‘‘any enhanced 

monitoring beyond SMART shall 

commence within seven days.’’ 

According to the commenter, this 

ensures that the best experts can be 

mobilized to respond to the spill, 

monitoring vessels can be located and 

mobilized, sampling strategies can be 

developed, and appropriate safety 

considerations can be reviewed. 

EPA proposed new monitoring 

requirements for the responsible party 

to implement when any subsurface and 

certain surface dispersant use 

conditions are met: ‘‘When these 

dispersant use conditions are met, and 

for the duration of dispersant 

operations, the responsible party shall 

. . .’’. EPA disagrees that the phrase can 

be misconstrued when taken within the 

context of the new monitoring 

requirements because it is qualified 

with the statement: ‘‘When these 

dispersant use conditions are met . . .’’. 

Further, the new minimum set of 

requirements for the specified atypical 

dispersant use conditions fall within the 

construct of the NCP and do not prevent 

the OSC to further consider the 

potential variability for any given 

response action. Additionally, the 

responsible party is required to submit 

a DMQAPP to the OSC, in which some 

of the incident-specific considerations 

to implementing monitoring operations 

can be addressed while still meeting the 

regulatory provisions. Thus, the Agency 

disagrees that the new provisions may 

not offer enough flexibility to allow for 

an appropriate level of monitoring. 

As stated before, the final rule 

provides notification for a responsible 

party to identify and prepare for 

potential deployment of monitoring 

assets prior to the incident. Monitoring 

assets for a responsible party to identify 

and prepare for include response 

personnel, equipment, sampling 

materials, and alternative resources to 

account for equipment failure. The 

Agency also considered the steps taken 

for the deployment of subsurface 

dispersant injection equipment, 

including their associated time frames. 

The Agency does not believe deploying 

monitoring equipment should take 

longer than the deployment of 

subsurface dispersant injection 

equipment. Replacing the applicability 

criteria with a single criterion that ‘‘any 

enhanced monitoring beyond SMART 

shall commence within seven days’’ 

would result in subsurface dispersant 

application without any subsurface 

monitoring in place or surface 

monitoring beyond the intended 

applicability of SMART. 

Some commenters were against 

having thresholds or applicability 

criteria for triggering the monitoring 

requirements and suggested that EPA 

should require comprehensive 

monitoring in all instances of dispersant 

or any other product use, regardless of 

the spill volume or duration, especially 

in Arctic waters. Some commenters 

asserted that this type of comprehensive 

monitoring would better capture acute 

effects on aquatic organisms. Other 

asserted comprehensive monitoring is 

important as it may represent the only 

opportunity to test the efficacy of these 

agents in a field or ‘‘real world’’ setting. 

The Agency recognizes that there may 

be other factors to consider that 

influence spill outcomes beyond the 

spill volume. Further, surface dispersant 

use situations outside those specifically 

covered by the applicability criteria 

established in this final rule may also 

have adverse impacts. Thus, there is 

value in conducting operational 

monitoring for all instances of 

dispersant or any other chemical agent 

use, regardless of the spill volume, 

duration, or affected ecosystem. The 

new monitoring requirements in this 

action do not preclude an OSC from 

directing the responsible party to adopt 

similar procedures for dispersant use 

situations not covered by the 

established applicability criteria. This 

action does not impact the OSC 

authority to direct any monitoring 

necessary to evaluate dispersant efficacy 

and address potential toxicity concerns 

on aquatic organisms specific to the 

response, including in remote settings 

such as Arctic waters. 

A commenter suggested the use of 

SMART Tier I monitoring protocols for 

all surface dispersant use and 

monitoring of long-term effects of 

dispersant use specific to a particular 

incident. Another suggested that 

efficacy monitoring should follow the 

SMART Tier I, Tier II, and Tier III 

protocols. Some commenters also 

suggested that monitoring information 

can be used to verify planning 

assumptions and also to support seafood 

safety decisions and NRDA activities. A 

commenter suggested the proposed rule 

may not offer enough flexibility to allow 

for an appropriate level of monitoring 

and requested that EPA revise the 

requirements to allow for OSC and RRT 

assessments of monitoring needs at each 

site instead of on a discharge volume 

basis. 

The Agency disagrees with extending 

these new specific requirements to all 

instances of dispersant use. However, it 

agrees in part with commenters that 

dispersant use should be monitored and 

that monitoring of discharges not 

meeting the thresholds for these atypical 

monitoring requirements should, at a 

minimum, follow the NRT-approved 

SMART Tier I, Tier II, and Tier III 

protocols. EPA notes that RRTs typically 

include SMART monitoring as an 

essential element in their authorization 

of use review which is implemented 

during a response EPA disagrees with 

commenters who stated that all surface 

dispersant use should use the SMART 

Tier I protocol. While EPA recognizes 

the value of the SMART Tier I protocol 

in evaluating initial dispersant efficacy, 

it is based on aerial visual assessments 

by trained observers or advanced remote 

sensing instruments flying over the oil 

slick. To help evaluate visual 

assessments, NOAA developed a 

Dispersant Application Observer Job 

Aid, which is a field guide for trained 

observers to promote consistency in 

identification of dispersed and 

undispersed oil, describing oil 

characteristics, and reporting this 

information to decision-makers. The 

SMART Tier I protocol recognizes 

visual observations do not always 

provide confirmation that the oil is 

dispersed, and that dispersant 

operations effectiveness can be difficult 

to determine by visual observation 

alone. The SMART protocols do not 

monitor the fate, effects, or impacts of 

dispersed oil. 

The monitoring of atypical dispersant 

use necessitates specific considerations 

beyond those addressed by the SMART 

protocols. The new monitoring section 

in this rule is modeled after the 2013 

NRT guidance document Environmental 

Monitoring for Atypical Dispersant 


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Operations, developed following the 

Deepwater Horizon oil spill and 

specifically tailored to the type of 

atypical dispersant use situations 

covered by these new requirements. The 

2013 NRT guidelines specify that 

atypical uses of dispersants during a 

response are not addressed in the 

existing SMART monitoring protocols. 

Again, the SMART protocols do not 

apply to subsurface dispersant 

applications. EPA is unaware of any 

similar NRT-approved protocols or 

NOAA-developed job aids related to 

subsurface dispersant application. The 

new monitoring requirements in this 

final action are intended to supplement, 

and not to replace, the SMART 

protocols. The new requirements take 

into account that the SMART 

monitoring activities are expected to 

have already been deployed in atypical 

dispersant use situations. While some 

monitoring requirements are included 

in the SMART Tier III protocol (e.g., 

turbidity, pH, Conductivity, 

Temperature), other requirements (e.g., 

in-situ droplet size distribution) that are 

important to the understanding of 

dispersant effectiveness are not. 

With respect to a commenter who 

recommended monitoring of long-term 

effects of dispersant use specific to a 

particular incident, the Agency agrees 

that potential long-term effects of 

dispersant use should be considered 

during dispersant use decision-making. 

However, monitoring the long-term 

effects of dispersant use specific to a 

particular incident is part of the NRDA 

process. Again, these new monitoring 

requirements are intended to inform 

operational decision-making specific to 

atypical dispersant use and not 

intended to be part of the NRDA. The 

broader NRDA data gathering efforts 

may apply to dispersant operations or 

other parts of the response. 

Some commenters stated that the 

efficacy of dispersants in Arctic waters 

is poorly understood and until 

additional scientific data is available, 

monitoring following any dispersant use 

should be required. A commenter 

suggested that in addition to the 

monitoring requirements, EPA should 

establish thresholds for the maximum 

dispersant application volumes over 

time, after which dispersants use should 

be ceased. Another suggested that all 

dispersant use should be curtailed until 

there is a more robust understanding of 

the toxic effects of these types of 

chemicals. Another commenter 

suggested that EPA should require sitespecific testing and monitoring of 

products to determine efficacy prior to, 

during, and after response actions. 

The Agency disagrees with the 

comments that the new monitoring 

requirements should include thresholds 

for maximum dispersant application 

volumes over time, after which 

dispersants use should be ceased. 

Establishing dispersant use volumes 

depends not only on incident-specific 

factors, but also on many site-specific 

factors (e.g., local hydrodynamic 

conditions, species sensitivities), 

making this suggested approach overly 

restrictive. However, the Agency shares 

the commenters’ concerns regarding the 

impact of atypical use of dispersants on 

the affected environments. The decision 

not to establish maximum dispersant 

application volumes over time, as part 

of these new monitoring requirements, 

should not be interpreted to mean that 

the Agency supports unlimited 

dispersant use. When responding under 

the NCP, decisions on dispersants and 

other chemical agents used are to be 

made in accordance with the 

authorization of use procedures in 40 

CFR 300.910 of Subpart J. The 

provisions under Subpart J are driven by 

the statutory requirement to develop a 

schedule (see CWA 311(d)(2)(G)) that 

identifies the waters and quantities in 

which dispersants and other chemical 

agents may be safely used in such 

waters. The OSC is to make dispersant 

use determinations for each response 

based on all relevant circumstances and 

in accordance with existing 

authorization of use procedures under 

Subpart J of the NCP. The data and 

information resulting from the new 

monitoring requirements promulgated 

in this action will serve to inform 

dispersant use decisions during a 

response by the OSC and other Agencies 

with roles and responsibilities under the 

NCP where atypical dispersants are 

deployed. The new monitoring 

provisions, when taken together with 

the existing testing requirements, listing 

of agents, and authorization of use 

procedures under Subpart J address the 

types of waters and the quantities of 

listed agents that may be used safely in 

such waters in a response. The wide 

variability in waters, weather 

conditions, organisms living in the 

waters, and types of oil that might be 

discharged requires this approach. Any 

environmental tradeoff methodologies 

applied to dispersant use decisions 

must be in conformance with the 

statutory and regulatory authorities that 

govern the dispersant use. 

The Agency continues to engage with 

the research community to incorporate 

advances in scientific understandings of 

dispersant use into existing policies. 

Curtailing all dispersant use until every 

aspect of dispersant efficacy and 

toxicity is studied would be 

impracticable and overly restrictive. 

However, EPA agrees an important 

aspect of dispersant use decisionmaking is documenting information and 

associated uncertainties of dispersant 

efficacy and toxicity specific to the 

conditions and geographical location 

where they are intended for use. The 

final monitoring requirements direct the 

responsible party to document the 

dispersant used and the rationale for 

dispersant choice(s), including the 

results of any efficacy and toxicity tests. 

Documentation of any additional 

efficacy and toxicity testing results, data 

or information specific to the area or site 

conditions, and associated uncertainties 

will assist the OSC and RRT(s) in 

choosing the appropriate dispersant use 

approach. The listing of a specific 

dispersant (i.e., dispersant product) on 

the NCP Product Schedule is not a 

rationale to use a dispersant in any 

given situation. Further, the listing of a 

specific dispersant on the NCP Product 

Schedule does not mean that EPA 

approves, recommends, licenses, 

certifies, or authorizes its use on an oil 

discharge. The listing means only that 

the required data have been submitted 

to EPA as required by Subpart J of the 

National Contingency Plan, 40 CFR 

300.915. 

Finally, EPA agrees with commenters 

who requested the new monitoring 

requirements also include site-specific 

baseline monitoring prior to application 

of dispersant and is amending the final 

rule to reflect this change. The Agency 

believes this a rational and necessary 

addition since an understanding of 

baseline conditions is required for 

understanding the effects of dispersants 

in a specific area. The Agency believes 

that baseline monitoring will provide 

pre- and post- dispersant application 

data to better evaluate the effects, 

including physical dispersion, of the 

dispersants. Further discussion on this 

change to the proposed requirements is 

found in Water Column Sampling 

discussion in this preamble. 

5. Surface vs. Subsurface Monitoring 

A commenter suggested that EPA 

distinguish between surface and 

subsurface monitoring in the first 

paragraph of the proposed rule. They 

also suggested that the OSC should 

authorize dispersant use and evaluate 

the need for monitoring actions. The 

commenter suggested the proposed 

updates seem to inappropriately replace 

the three-tiered SMART protocols 

which this commenter indicated should 

be implemented for surface dispersant 

use using USCG resources. They also 


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requested that the rule specify that the 

responsible party monitor subsurface 

dispersant injections. They also asked 

that the monitoring requirement updates 

not impede response actions or 

dispersant use and should be 

implemented only after there are 

available resources during a response. 

Regarding subsurface monitoring, the 

commenter also proposed that EPA use 

the documentation in the published 

Industry Recommended Subsea 

Dispersant Monitoring Plan—Version 

1.0 as their basis for subsurface 

monitoring protocols. Similarly, a 

commenter requested a restructuring of 

the proposed rule to provide separate 

guidance for surface and subsurface 

dispersant use. 

The Agency believes the monitoring 

section is clear relative to the 

requirements for the subsurface and 

surface monitoring and that dividing the 

monitoring section into separate 

subsections would be duplicative and 

unnecessary. However, the final rule 

does identify specific requirements 

relative to surface versus subsurface 

applicability. This preamble provides 

additional context to the intent of the 

regulatory requirements for surface and 

subsurface monitoring. 

EPA notes that dispersant 

authorization of use is governed by a 

separate section of Subpart J (40 CFR 

300.910) and is outside the scope of the 

new monitoring requirements for 

atypical dispersant use in this final 

action. The monitoring section of the 

final rule provides a minimum set of 

requirements the Agency believes are 

necessary for monitoring the use of 

dispersants in those situations covered 

by the applicability criteria. 

The Agency disagrees that the 

proposed updates inappropriately 

replace the three-tiered SMART 

protocols, which the commenter 

indicated should be implemented for 

surface dispersant use using USCG 

resources. According to the 2013 NRT 

Environmental Monitoring for Atypical 

Dispersant Operations, atypical uses of 

dispersant during a response were not 

addressed in the existing SMART 

monitoring program. The SMART 

protocols do not apply to subsurface 

dispersant application, and the 

monitoring requirements for surface 

application are intended to supplement, 

not replace, the SMART protocols. 

EPA disagrees that surface dispersant 

monitoring should be implemented 

using USCG resources to meet these 

regulatory requirements. The provisions 

of dispersant monitoring are 

appropriately the responsibility of the 

regulated community. USCG resources 

are intended to provide support in 

excess of commercially available 

resources. The SMART protocols do not 

limit surface dispersant monitoring to 

only USCG resources. The availability of 

government resources is not assured and 

does not satisfy the regulatory standard 

or intent of this rulemaking. Finally, 

while the OSC may choose to 

implement separate monitoring 

activities, the new monitoring 

requirements in this final rule are for 

the responsible party to implement and 

not directed towards any government 

agency or resources. 

EPA does not believe the monitoring 

requirement will in any way impede 

response actions or dispersant use and 

disagrees that monitoring requirements 

should be implemented only after there 

are available resources during a 

response. The Agency also notes steps 

taken for the deployment of subsurface 

dispersant injection equipment, 

including their associated time frames. 

The Agency does not believe deploying 

monitoring equipment should occur on 

a time frame that is longer than the 

deployment of subsurface dispersant 

injection equipment. As observed 

elsewhere in this preamble, the new 

monitoring provisions do not change 

current preparedness or planning 

regulatory requirements; the monitoring 

and data submissions that serve as the 

basis of this rule were established in the 

2013 NRT Environmental Monitoring for 

Atypical Dispersant Operations 

document. The Agency believes that 

both industry and oil spill response 

organizations (OSROs) are aware of the 

NRT guidance document referenced 

immediately above and have since been 

preparing for monitoring requirements 

described in this rule. This final action 

provides notice to potential responsible 

parties of the expectation to identify and 

prepare for deployment of monitoring 

assets, to obtain data and information 

required during those discharge 

situations subject to this action, 

including response personnel, 

equipment, and sampling materials. 

This final action also allows potential 

responsible parties time to identify and 

have strategies in place to provide 

alternative resources for eventualities 

such as equipment failure, rather than 

wait until an incident occurs. The 

Agency encourages planning and 

preparedness efforts and supports these 

efforts with our interagency partners. 

B. Information on Dispersant 

Application 

In the new monitoring regulations, the 

responsible party is required to 

document: (1) The characteristics of the 

source oil; (2) the best estimate of the oil 

discharge volume or flow rate, 

periodically reevaluated as conditions 

dictate, including a description of the 

method, associated uncertainties, and 

materials; (3) the dispersant used, 

rationale for dispersant choice(s) 

including the results of any efficacy and 

toxicity tests specific to area or site 

conditions, recommended dispersant-tooil ratio (DOR); and (4) the application 

method(s) and procedures, including a 

description of the equipment to be used, 

hourly application rates, capacities, and 

total amount of dispersant. For 

subsurface discharges, the responsible 

party must also document the best 

estimate of the discharge flow rate of 

any associated volatile petroleum 

hydrocarbons, periodically reevaluated 

as conditions dictate, including a 

description of the method, associated 

uncertainties, and materials. Methods 

and materials are commonly used 

terminology in the technical and 

scientific community, explaining the 

procedures and equipment used to 

obtain the results. The description 

should allow the reader to understand 

how the data was obtained and to 

reconstruct the methodology to get 

similar results. 

As addressed in the preamble, the 

new monitoring requirements in this 

final action do not, for example, 

preclude the OSC from seeking a 

qualified third party to conduct 

additional monitoring or testing, from 

requiring the responsible party to use a 

third party to conduct the monitoring or 

testing where the OSC deems it 

appropriate, or from seeking 

supplemental information separately. 

Similarly, the final rule does not 

preclude the consideration of thirdparty testing or test results. 

A commenter expressed concern 

regarding the reliance on potentially 

responsible parties for spill 

characterization including estimates of 

blowout flow rates and spill volumes as 

the basis for dispersant application 

volumes. A commenter suggested that 

the responsible party should be required 

to disclose all information used in 

determining estimates of flow rates and 

spill volumes. Another commenter 

recommended that any estimates of spill 

volumes or blowout rates should be 

independently derived and not under 

the purview of the potential responsible 

party. This commenter also indicated 

concern that the rule seems to only 

contain reference to blowout-type 

releases and argued that all potential 

types and sources of spills should be 

included in the updates to the rule. The 

commenter also stated that other 

parameters (e.g., oil viscosity, 

emulsification, dispersant formulation, 

dose rate, mixing energy, water salinity, 


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and potential for dilution) should be 

included in the dispersant application 

decision-making process. 

The Agency understands the concerns 

regarding the reliance on responsible 

parties for spill characterization, 

including estimates of blowout flow 

rates and spill volumes as the basis for 

dispersant application volumes. EPA is 

specifying ‘‘volume’’ since the 

monitoring requirements also apply to 

certain near instantaneous discharges 

where ‘‘flow rate’’ is not as applicable 

(e.g., catastrophic tank vessel casualty). 

However, the new monitoring 

requirements do not preclude the OSC 

from seeking non-responsible party 

evaluations, including independent 

government agencies or academia, for 

spill characterization including 

estimates of discharge flow rates and 

volumes. 

The new provisions require the 

responsible party to document the 

characteristics of the source oil and 

provide the best estimate of the oil 

discharge flow rate, periodically 

reevaluated as conditions dictate, 

including a description of the method, 

associated uncertainties, and materials. 

EPA agrees that the responsible party 

should disclose to the OSC all relevant 

information used in determining 

estimates of flow rates and spill 

volumes. This will provide the OSC 

with the necessary information for 

operational decision-making and 

coordination of the dispersant 

application monitoring. 

The Agency agrees that other 

parameters (e.g., oil viscosity) may 

inform the dispersant decision-making 

process, including dispersant 

application. For example, oil viscosity is 

an important parameter in 

characterizing the source oil and in 

conducting trajectory modeling as 

described in the Oil Distribution 

Analyses discussion in this preamble. 

The Agency believes these parameters 

are already inherently captured in the 

monitoring section, including the 

Dispersant Application and Oil 

Distribution Analyses discussions in 

this preamble, and therefore it is 

unnecessary to specifically list 

additional parameters. 

A commenter stated that the 

responsible party should not be required 

to provide documentation at the onset of 

a response if the documentation was 

previously provided in the preparedness 

or planning stages. The commenter 

suggested removing this section from 

the proposed rule. They stated that if a 

dispersant or other agent is on the 

Schedule, then by definition it is a 

viable response option. This commenter 

also stated that if the section is not 

removed, it should be amended to say 

hourly application rates are to be 

provided for subsurface dispersant 

applications only. They indicated that 

an hourly application rate would not 

apply to aerial or vessel types of 

application which are measured on the 

basis or spray assets, application speed, 

and spray system swath widths. This 

commenter also recommended that the 

section discussing the DOR be edited to 

indicate that the ratio may need to be 

changed from the initial recommended 

ratio in response to site-specific 

environmental conditions or the 

weathering condition of the oil. 

EPA disagrees that the responsible 

party should not be required to provide 

documentation at the onset of a 

response if the documentation was 

previously provided in the preparedness 

or planning stages and also disagrees 

with the suggestion that the section 

addressing such be removed from the 

proposed rule. The Agency also 

disagrees that listing of a dispersant or 

other agent on the Schedule defines it 

as a viable response option for any given 

response. 

Requiring the responsible party to 

provide documentation ensures that 

information is directly provided to the 

OSC and is relevant to the incidentspecific discharge situation and also 

avoids any potential delays in 

information gathering. The Agency calls 

attention to existing regulatory 

requirements clearly establishing that 

being listed on the NCP Product 

Schedule is not itself a rationale or 

authorization to use that dispersant in 

any given situation, but rather that the 

product is available for consideration as 

a response option, as appropriate. 40 

CFR 300.920. The listing of a specific 

dispersant on the NCP Product 

Schedule does not mean that EPA 

approves, recommends, licenses, 

certifies, or authorizes the use of that 

dispersant on an oil discharge. The 

listing means only that data have been 

submitted to EPA as required by 

Subpart J of the National Contingency 

Plan, 40 CFR 300.915. 

The Agency disagrees that the final 

rule should require hourly application 

rates be provided only for subsurface 

dispersant applications. Even if aerial or 

vessel types of application are measured 

based on spray assets, application 

speed, and spray system swath widths, 

the responsible party can calculate the 

volume of dispersant applied during the 

time in which it is applied. Certain 

American Society for Testing and 

Materials (ASTM) Standards (e.g., 

ASTM F1737/F1737M–19 Standard 

Guide for Use of Oil Spill Dispersant 

Application Equipment During Spill 

Response: Boom and Nozzle Systems; 

ASTM F1413/F1413M–18 Standard 

Guide for Oil Spill Dispersant 

Application Equipment: Boom and 

Nozzle Systems) may include 

procedures to assist in determining 

dispersant application rates. 

Furthermore, EPA clarified in the 

regulatory text that the daily reporting 

requirements for the actual amount of 

dispersant used is intended for each 

dispersant application platform. 

EPA does not believe that the DOR 

should be qualified as ‘‘initial’’ to 

account for site-specific environmental 

conditions or the weathering condition 

of the oil. To the extent that the 

responsible party believes the DOR 

should be changed from the initial 

recommendation, they may request a 

change and should provide supporting 

documentation justifying the change for 

consideration by the OSC and RRT, as 

appropriate. 

A commenter also suggested that EPA 

should remove the requirement for 

measuring volatile petroleum 

hydrocarbons. They indicated these 

types of measurements are very difficult 

to obtain and fluctuate due to shifts in 

wind speed and direction or changes in 

sun exposure. They also argued that 

EPA should use already existing best 

practices for dispersant monitoring such 

as the American Petroleum Institute 

(API) guidelines on subsurface 

dispersant monitoring, API TR 1152. 

The commenter proposed specific 

language for this change. 

The Agency disagrees with the 

suggestion to remove the requirement 

for measuring volatile petroleum 

hydrocarbons. EPA recognizes the 

concern that these types of 

measurements may be difficult to obtain 

and may fluctuate due to shifts in wind 

speed and direction or changes in sun 

exposure for air sampling. However, 

these factors should not adversely affect 

measurements of these petroleum 

constituents in the water column as the 

result of a discharge where the 

subsurface application of dispersant 

may occur. 

The Agency disagrees with replacing 

‘‘. . . collection of all environmental 

data.’’ with ‘‘. . . collection of 

operational monitoring data.’’ However 

for clarity, the Agency has replaced 

‘‘. . . collection of all environmental 

data.’’ with ‘‘. . . collection of 

environmental data within this section.’’ 

The monitoring requirements focus on 

collecting environmental data to 

support dispersant use decision-making 

in response operations, and not on 

overall operational monitoring to 

evaluate how well other response 

options (e.g., in-situ burning) may 


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mitigate the negative effects of the oil 

discharge on sensitive environmental 

resources. The Agency recognizes an 

overall response strategy may 

incorporate operation monitoring to 

evaluate reducing the overall impact of 

an oil discharge and may include 

response options that are outside the 

scope of the dispersant monitoring 

section. However, the monitoring 

section in the final rule focuses on the 

environmental monitoring related to 

dispersant use. In addition, dispersants 

are not the only response option; there 

are other response options (e.g., 

mechanical recovery) available that may 

lower overall environmental damage. 

Decisions on use of dispersants and 

other agents during a response are to be 

made in accordance with the NCP and 

the governing statute(s). Environmental 

tradeoff methodologies where 

dispersants are considered must be in 

conformance with the statutory and 

regulatory authorities that govern 

dispersant use when considering the 

extent to which they can be used. 

As noted in the proposed rule, the 

goal of establishing a Schedule under 

the NCP is to protect the environment 

from possible damage related to spill 

mitigating products used in response to 

oil discharges. This goal is consistent 

with past preambles related to Subpart 

J. For example, the 1994 NCP final rule 

(59 FR 47407) noted, ‘‘. . . EPA believes 

that Congress’ primary intent in 

regulating products under the NCP 

Product Schedule is to protect the 

environment from possible deleterious 

effects caused by the application or use 

of these products. In looking at the longand short-term effects on the 

environment of all spill mitigating 

devices and substances, EPA has 

concluded that chemical and 

bioremediation countermeasures pose 

the greatest threat for causing 

deleterious effects on the environment.’’ 

A commenter indicated that they do 

not support the proposed provisions 

and expressed concerns regarding the 

role of the responsible party in 

dispersant operations and product 

selection. The commenter suggested that 

all dispersant-related activities and 

product selections be primarily advised 

by the NOAA SSC through the OSC and 

RRT with operational support from the 

responsible party. Similarly, a 

commenter requested that EPA clarify 

that the OSC, and not the responsible 

party, has final authority regarding the 

dispersant application practices. The 

commenter also suggested that new 

technologies such as open-cell 

elastomeric foams be used in 

conjunction with dispersants to mitigate 

environmental damage. 

EPA recognizes the concern regarding 

the role of the responsible party in 

dispersant operations and product 

selection. However, the NCP establishes 

the OSC’s authority to direct response 

efforts, including overseeing dispersant 

use and monitoring in accordance with 

Subpart J of the NCP. See, e.g., 40 CFR 

300.120. Also, SSCs may provide 

scientific support for operational 

decisions and coordinate on-scene 

scientific activity during a response, as 

described in the NCP under 40 CFR 

300.145(c). The use of other response 

mitigation technologies is outside the 

scope of this final action. 

C. Water Column Sampling 

1. Background and Baseline Sampling 

The final action requires the 

responsible party to collect a 

representative set of ambient 

background water column samples in 

areas not affected by the discharge of 

oil, at the closest safe distance from the 

discharge as determined by the OSC, 

and in the directions of likely oil 

transport considering surface and 

subsurface currents. The responsible 

party is also required to collect a 

representative set of baseline water 

column samples at such depths and 

locations affected by the discharge of oil 

absent dispersant application, 

considering surface and subsurface 

currents, oil properties, and discharge 

conditions. This collection of 

background and baseline water column 

samples is to follow standard operating 

and quality assurance procedures. These 

representative sets must be analyzed for 

the following variables: (1) In-situ oil 

droplet size distribution, including mass 

or volume mean diameter for droplet 

sizes ranging from 2.5 to 2,000 mm, with 

the majority of data collected between 

the 2.5 and 100 mm size; (2) in-situ 

fluorometry and fluorescence signatures 

targeted to the type of oil discharged 

and referenced against the source oil; (3) 

dissolved oxygen (DO) (subsurface 

only); (4) total petroleum hydrocarbons, 

individual resolvable constituents 

including volatile organic compounds 

(VOC), aliphatic hydrocarbons, 

monocyclic, polycyclic, and other 

aromatic hydrocarbons including 

alkylated homologs, and hopane and 

sterane biomarker compounds; (5) 

methane, if present (subsurface only); 

(6) heavy metals, including nickel and 

vanadium; (7) turbidity; (8) water 

temperature; (9) pH; and (10) 

conductivity. 

A commenter expressed support for 

the proposed background sampling 

requirements. Another commenter 

expressed support for the proposed 

updates and suggested that the sampling 

also include background areas to better 

delineate the plume. That commenter 

stated that the sample collection and 

analysis should be paired with aerial 

and strobe imagery to more effectively 

assess the plume area. Another 

commenter also suggested the use of the 

‘‘Dispersed Oil Monitoring Plan’’ 

developed by California Office of Spill 

Prevention and Response (OSPR), which 

provides an approach for water column 

sampling. Another commenter 

supported the proposed monitoring 

requirements but suggested they include 

establishing baseline conditions prior to 

product application. Another 

commenter suggested that EPA add an 

exception clause to the proposed rule 

which would require responsible parties 

to document why some or all sample 

collection requirements were not 

feasible during a given incident 

response. 

The Agency agrees with the 

commenter’s suggestion to include 

background water sampling and has 

included such requirements in the final 

rule. The Agency believes this a rational 

and necessary addition since an 

understanding of background conditions 

is required for understanding the 

incremental effects of dispersants. 

Ambient background sampling 

characterizes relevant ambient water 

conditions unaffected by the discharged 

oil, serves to check instrument 

performance, and informs dispersed oil 

plume behavior and delineating plume 

boundaries. The Agency recognizes 

imagery technology may assist in more 

effectively assessing the plume area 

when paired with water sampling. The 

final rule requires that the responsible 

party consider available technologies to 

characterize dispersant effectiveness 

and oil distribution, which may include 

imagery technology. The Agency 

believes the specific approach suggested 

for water column sampling as outlined 

in the ‘‘Dispersed Oil Monitoring Plan’’ 

developed by OSPR is consistent with 

the approach established in these 

monitoring provisions. 

EPA agrees with commenters who 

requested the new monitoring 

requirements also include site-specific 

baseline monitoring of the oil discharge 

in the absence of dispersant application 

and is including such requirement in 

the final rule. The Agency believes that 

baseline monitoring will provide data 

absent dispersant application to 

evaluate physical dispersion relative to 

the effects of dispersant use. The 

baseline requirement is intended to 

consider the currents and oil 

characteristics, as well as other relevant 

discharge conditions such as the 


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discharge configuration or multiple 

discharge locations. The Agency also 

included similar clarifying language for 

the water column sampling in the 

dispersed oil plume provision. 

Conducting baseline monitoring absent 

dispersant application reduces potential 

uncertainties associated with dispersant 

effectiveness in the field and supports 

dispersant use decision-making in 

response operations. For subsurface 

dispersant application, this means 

initiating monitoring immediately prior 

to dispersant application to avoid 

disrupting dispersant application once 

it is initiated. The Agency does not 

believe that collection of baseline 

monitoring data immediately prior to 

subsurface dispersant application will 

delay response actions. Equipment for 

subsurface dispersant injection typically 

takes days to be deployed by vessels for 

offshore facilities and become 

operationally ready. Thus, there is an 

opportunity to also deploy monitoring 

equipment, prior to or concurrent with 

that of subsurface dispersant injection 

equipment, without delaying subsurface 

dispersant application. Of note, EPA is 

not requiring 24-hour analyses be 

conducted and results be provided 

before dispersant application may begin; 

only that samples be collected. The 

Agency notes again that the new 

monitoring provisions do not change 

current preparedness or planning 

regulatory requirements; the monitoring 

and data submissions that serve as the 

basis of this rule were established in the 

2013 NRT Environmental Monitoring for 

Atypical Dispersant Operations 

document. Further, the Agency believes 

that industry and OSROs have been 

preparing for the requirements of this 

rule since the 2013 issuance of the NRT 

guidance document, and notes API 

issued its own guidelines in 2013 on 

subsurface dispersant monitoring (API 

TR 1152). This final action provides 

notice for a potential responsible party 

to identify and prepare for deployment 

of monitoring assets including 

identifying response personnel, 

equipment, and sampling materials. 

Potential responsible parties also have 

time to identify and plan for the need 

of alternative resources to account for 

events such as equipment failure, rather 

than wait until an incident occurs. The 

Agency, along with our interagency 

partners, continues to support and 

encourage these planning and 

preparedness efforts. 

The Agency recognizes that for certain 

atypical oil discharge situations where 

surface dispersants have been 

authorized, dispersant application may 

already be underway (e.g., surface 

dispersant use prior to the 96-hour after 

initial application threshold) or capable 

of being applied by aircraft prior to 

dispersant monitoring vessels being 

deployed (e.g., for surface dispersant 

application for oil discharges greater 

than 100,000 U.S. gallons within a 24- 

hour period). The final rule is not 

intended to impede surface dispersant 

application until vessels are deployed to 

begin baseline monitoring prior to the 

first dispersant application, nor to stop 

such operations once they have been 

authorized. However, EPA also 

understands that deployment of 

monitoring assets should begin before 

the 96-hour after initial application 

threshold is reached so as not to delay 

monitoring operations. Likewise, the 

initial application of authorized surface 

dispersant use by aircraft should not be 

delayed until surface monitoring assets 

are deployed. The Agency believes 

surface dispersant monitoring should be 

operational as soon as possible to allow 

for baseline monitoring because of its 

ability to inform the response efforts 

and is to be operational in accordance 

with the new monitoring requirements 

where the discharge meets the 96-hour 

after initial application threshold. To 

address concerns raised by commenters 

and avoid any misinterpretation that 

initial surface dispersant use by aircraft 

would be delayed, the Agency is 

clarifying the regulatory text, and 

specifically that for the monitoring 

requirements for any surface dispersant 

use in response to oil discharges of more 

than 100,000 U.S. gallons occurring 

within a 24-hour period. The Agency is 

specifying that when any dispersant is 

used on the surface in response to oil 

discharges of greater than 100,000 U.S. 

gallons occurring within a 24-hour 

period, the responsible party shall 

implement paragraphs (a) through (g) of 

this section as soon as possible for the 

entire or remaining duration of surface 

dispersant use, as applicable. Finally, 

the Agency recognizes the differences in 

subsurface versus surface dispersant 

application relative to discharge 

location. Dispersant application in the 

subsurface generally occurs close to the 

oil discharge location, while surface 

dispersant application to oil patches 

may at times occur further away from 

the oil discharge location. Multiple oil 

patches provide multiple opportunities 

to monitor surface dispersant 

application activities, including 

baseline monitoring. EPA is not 

suggesting that every oil patch in which 

dispersant is applied must be 

monitored, but that the responsible 

party implement a sampling strategy 

where representative oil patches are 

monitored for baseline data and for the 

duration of dispersant operations. 

EPA disagrees with the commenter 

who suggested the addition of an 

exception clause, which would require 

responsible parties to document why 

some or all sample collection 

requirements were not feasible during a 

given incident response. The 

commenter did not identify why some 

or all sample collection requirements 

would not be feasible. The Agency 

believes that such an exception would 

be overly broad. The responsible party 

is required to follow established 

standard operating and quality 

assurance procedures when collecting 

water column samples. Some 

commenters expressed general 

agreement with the need for monitoring 

but said that the proposed requirements 

add unnecessary analytical parameters 

and that such requirements may 

actually delay response actions. A 

commenter also stated that monitoring 

should be incident specific and be 

under the responsibility of the OSC and 

responsible party. 

The Agency disagrees that the 

proposed requirements add unnecessary 

analytical parameters and that such 

requirements may actually delay 

response actions. Each oil discharge 

represents a unique situation with 

distinct conditions which may require 

various response methods. When 

dispersants are applied to an oil 

discharge, field monitoring can be used 

to inform operational decisions by 

gathering site-specific information on 

the overall effectiveness, including the 

transport and environmental effects of 

the dispersant and the dispersed oil. 

The Agency disagrees that the 

monitoring requirements for dispersant 

use are limited in scope to evaluating 

the initial effectiveness of the dispersant 

application. The Agency is requiring 

that sample collection follow 

established standard operating and 

quality assurance procedures that are 

reliable and defensible. Elements of 

monitoring plans are generally 

described in various guidance 

documents on standard operating and 

quality assurance procedures for 

environmental sampling. 

The Agency disagrees with the 

premise that monitoring requirements 

could hamper response activities from 

occurring in a timely manner. 

Specifically, the monitoring 

requirements are not designed to delay 

or impede response actions related to 

the deployment of mechanical recovery, 

in-situ burning, or dispersant-related 

equipment. The Agency also notes the 

time frame for deployment of subsurface 

dispersant injection equipment by 


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vessels for offshore facilities is not 

expected to be different than the 

deployment of subsurface dispersant 

injection equipment. The final rule 

provides notification for a responsible 

party to identify and prepare for 

potential deployment of monitoring 

assets prior to an incident. These assets 

may include response personnel, 

equipment, and sampling materials, as 

well as alternative resources and 

procedures to account for events such as 

equipment failure. Comments regarding 

the OSC’s roles and responsibilities are 

addressed in Roles and Responsibilities 

for Monitoring Operations discussion in 

this preamble. 

A commenter stated that elements of 

3–D and 4–D modelling should be 

included to broaden the overall 

understanding of subsurface conditions. 

The Agency acknowledges the modeling 

suggestion and addresses trajectory 

modeling in the Oil Distribution 

Analyses discussion in this preamble. 

The same commenter recommended 

updates to the proposed rule language 

droplet size distribution analysis; 

however, the Agency believes that the 

commenter intended for the droplet size 

to be in micrometers (mm) instead of 

picometers (pm) in its recommended 

rule language because for the purpose of 

measuring dispersed oil, droplet size is 

typically reported in micrometer units. 

Some commenters indicated that 

water sampling requirements are more 

appropriate for the NRDA process. The 

Agency disagrees that the water 

sampling requirements in this final 

action are more appropriate for the 

NRDA process and believes that 

comprehensive monitoring for discharge 

situations subject to this action is 

necessary to determine the overall 

effectiveness of dispersants and should 

extend beyond the initial dispersant 

application to include the transport and 

environmental effects of the dispersant 

and dispersed oil in the water column. 

Furthermore, the Agency notes that the 

SMART Tier III protocol also includes 

water sampling. 

Another commenter supported the 

proposed monitoring requirement and 

suggested that EPA require sampling 

and analysis of VOCs, semi-volatile 

compounds, and the full suite of metals 

and metalloids. This commenter also 

recommended the use of specific 

sampling devices. This final action 

requires water column samples in the 

dispersed oil plume to be analyzed for 

total petroleum hydrocarbons, which 

includes VOCs and semi-volatile 

compounds. Additionally, the 

commenter is not clear about which 

metals and metalloids to analyze for and 

which analytical methods to use. The 

Agency is requiring water samples be 

analyzed for heavy metals, including 

nickel and vanadium, which are 

typically found in crude petroleum oil. 

EPA does not specify sample collection 

methods or devices in the water column 

sampling requirements. The Agency is 

requiring that sample collection follow 

established standard operating and 

quality assurance procedures that are 

reliable and defensible; standard 

operating procedures should describe 

the appropriateness of the sampling 

method, including the equipment 

needed for sample collection. 

A commenter indicated support 

specifically for daily water column 

sampling in the dispersed plume. This 

commenter also suggested that EPA 

develop protocols for surface and 

subsurface current tracking. EPA 

acknowledges a commenter’s support 

specifically for daily water column 

sampling in the dispersed plume. EPA 

does not believe it is appropriate to 

develop protocols for surface and 

subsurface current tracking because the 

Agency believes these issues are best 

addressed in a DMQAPP. The final rule 

requires that the responsible party 

consider available technologies to 

characterize dispersant effectiveness 

and oil distribution. 

A commenter expressed support for 

the proposed monitoring requirements 

but suggested that EPA provide 

minimum required monitoring 

guidance. Such guidance might include 

timing, sample frequency, number of 

samples, spatial locations, and sampling 

depths. This commenter also had 

questions regarding thresholds for each 

of the proposed monitoring parameters 

that would require a cessation of 

adjustment in response actions. For 

example, they questioned whether there 

is a threshold lower value for pH or DO 

in the water column, at which point 

responders would shift response actions 

until the parameter values were within 

the acceptable range. The commenter 

suggested that these thresholds should 

be established for each sampled 

parameter. Due to the potential for 

dispersants to enhance bioavailability to 

aquatic organisms, the commenter also 

requested that bioaccumulation of Total 

Petroleum Hydrocarbons (TPH) and 

heavy metals in benthic biota be added 

to the monitoring requirements along 

with characterization of these 

components in the sediment. They also 

indicated that Ultraviolet (UV) radiation 

monitoring could enhance plume 

characterization as these data are 

inexpensive to collect and are useful for 

understanding the oil weathering state. 

The Agency acknowledges the 

commenter’s suggestions regarding 

monitoring guidance for timing, sample 

frequency, number of samples, spatial 

locations, and sampling depths. The 

Agency believes that the final rule 

provides flexibility to develop 

monitoring strategies that can be 

tailored to an incident-specific 

dispersant use situation. Because these 

situations may vary, the Agency did not 

establish specific parameters for sample 

frequency, number of samples, spatial 

locations, and sampling depths other 

than what has been provided in the final 

rule. However, the monitoring approach 

should include periodic sampling of 

previously sampled locations including 

near the discharge source to evaluate 

changes in parameters over time at those 

locations. 

Additionally, EPA did not propose to 

establish monitoring thresholds in the 

monitoring section and the 

establishment of thresholds is out of 

scope for these final monitoring 

provisions. EPA recognizes the 

commenter’s concern regarding 

monitoring in benthic biota, sediment 

characterization, and UV radiation 

monitoring. The final action does not 

prevent the OSC or appropriate RRT 

agencies from requiring additional 

monitoring parameters, which may 

include benthic biota monitoring, 

sediment characterization, or UV 

radiation monitoring. The final rule 

requires that the responsible party 

consider available technologies to 

characterize the dispersant effectiveness 

and oil distribution to determine 

changes in the condition of the oil due 

to weathering. 

A commenter suggested that 

incorporating API TR1152 (Industry 

Recommended Subsea Dispersant 

Monitoring Plan, Version 1.0, API 

Technical Report 1152, September 2013) 

by reference would meet the 

requirements of the subsection. The 

Agency disagrees that the monitoring 

requirements need to incorporate by 

reference API TR1152 or that adherence 

to it meets the requirements of the 

subsection. For example, API TR1152 

presents a phased approach which 

allows subsurface dispersant injection 

to commence after implementing 

limited visual confirmation and air 

monitoring. The Agency disagrees that 

such an approach is appropriate for the 

atypical situations expected to trigger 

applicability of these requirements, 

particularly for subsurface dispersant 

application. While SMART protocols 

include visual observation for surface 

dispersant use, air monitoring is used 

for in-situ burning situations. In 

addition, the SMART protocols are not 

applicable to subsurface dispersant 

application. The expectation is that for 


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those atypical dispersant use situations, 

the expanded monitoring provisions put 

forth in this action are necessary to 

effectively inform dispersant use. As 

previously discussed in this preamble, 

the requirements set forth in this action 

are informed by lessons learned during 

the Deepwater Horizon oil spill and are 

consistent with the 2013 NRT 

Environmental Monitoring for Atypical 

Dispersant Operations guidance 

document. 

2. Dispersed Oil Plume Daily Sampling 

The new provisions require the 

responsible party to collect daily water 

column samples in the dispersed oil 

plume, following standard operating 

and quality assurance procedures, at 

such depths and locations where 

dispersed oil is likely to be present. This 

daily sampling must include the 

following variables: (1) In-situ oil 

droplet size distribution, including mass 

or volume mean diameter for droplet 

sizes ranging from 2.5 to 2,000 mm, with 

the majority of data collected between 

the 2.5 and 100 mm size; (2) in-situ 

fluorometry and fluorescence signatures 

targeted to the type of oil discharged 

and referenced against the source oil; (3) 

dissolved oxygen (DO) (subsurface 

only); (4) total petroleum hydrocarbons, 

individual resolvable constituents 

including volatile organic compounds, 

aliphatic hydrocarbons, monocyclic, 

polycyclic, and other aromatic 

hydrocarbons including alkylated 

homologs, and hopane and sterane 

biomarker compounds; (5) methane, if 

present (subsurface only); (6) heavy 

metals, including nickel and vanadium; 

(7) turbidity; (8) water temperature; (9) 

pH; and (10) conductivity. Several 

commenters indicated support for the 

water column sampling section of this 

final rule and agreed that these 

provisions will add value during a 

response. 

3. Water Column Samples Analyses 

The responsible party must collect 

ambient background, baseline, and 

dispersed oil plume water column 

samples following standard operating 

and quality assurance procedures. The 

water column samples are to be 

analyzed, as applicable, for: Droplet size 

distribution; fluorometry and 

fluorescence; dissolved oxygen; total 

petroleum hydrocarbons; methane; 

heavy metals; turbidity; water 

temperature; pH; and conductivity. The 

Agency is not including the proposed 

requirement to analyze for carbon 

dioxide in this final action. The specific 

provisions are as follows: 

i. In-Situ Oil Droplet Size Distribution 

Analysis, Including the Mass or Volume 

Mean Diameters Between Droplet Sizes 

Ranging From 2.5 to 2000 mm, With the 

Majority of Data Collected Between the 

2.5 and 100 mm Sizes 

A commenter requested additional 

descriptions of the methodology for 

determining droplet size. They 

expressed concern that while 

techniques such as Laser In-situ 

Scattering and Transmissometry (LISST) 

can measure droplet size, there needs to 

be a process for confirming that the 

particles are dispersed oil versus other 

types of suspended particles. They 

suggested the concurrent use of 

fluorometers to help differentiate oil 

droplets from other particles. Another 

commenter similarly suggested that EPA 

clarify that droplet measurement 

methods should include fluorometers or 

similar instrumentation. This 

commenter also stated that the use of 

fluorometry could aid in confirming the 

measurement of actual oil droplets as 

opposed to other particles in the water 

column. 

A commenter discussed concerns 

related to the feasibility of in-situ 

droplet size measurements. They 

indicated that LISST has a droplet size 

detection limit of around 500 mm, well 

below the upper limit of the proposed 

range of 2.5–2000 mm. They also stated 

that there is currently no commercially 

available droplet measurement 

instrumentation that is operational in 

deep water to size ranges up to 2000 mm. 

They indicated that if this 

instrumentation did become available in 

the future, it would likely require 

remotely operated vehicles (ROV) or 

additional vessel support, which would 

be impossible to deploy without 

interfering with response activities. This 

commenter recommended that EPA 

allow for alternative methods for 

measuring droplet size including high 

definition, high speed photography, or 

sonar as these technologies mature. 

A commenter indicated strong 

support for the proposed updates to this 

section of the proposed rule, stating that 

droplet size measurement is critical for 

response actions. Similarly, a 

commenter stated that they agreed with 

EPA that the collection of droplet size 

distributions will add valuable 

information during response actions. 

The Agency is not requiring the use 

of specific oil size droplet measurement 

methods or instrumentation. Further, 

the Agency is not requiring the use of 

single instrument, methodology, vessel, 

or ROV be used to collect the required 

information. How to collect the 

information is left for the responsible 

party to determine and document in the 

DMQAPP. The Agency is requiring that 

droplet size information be collected 

because oil droplet sizes generally 

decrease with dispersant addition and 

because oil droplets below 100 mm 

generally remain entrained into the 

water column, relative to larger particles 

that may eventually resurface over time. 

Furthermore, collecting oil droplet sizes 

of a broader range informs trajectory 

modeling used to predict the fate and 

transport of dispersed oil and to inform 

sampling locations. This final rule 

requires that sample collection follow 

established standard operating and 

quality assurance procedures that are 

reliable and defensible; standard 

operating procedures should include the 

equipment needed for sample 

collection. The Agency agrees with the 

concurrent use of fluorometers to help 

differentiate oil droplets from other 

particles. The final rule includes 

fluorometry as part of the water 

sampling requirements. The Agency 

does not designate specific methods or 

devices in this final rule, including 

methods for measuring droplet size such 

as high definition, high speed 

photography, or sonar. 

ii. In-Situ Fluorometry and 

Fluorescence Signatures Targeted to the 

Type of Oil Discharged and Referenced 

Against the Source Oil 

A commenter indicated that the 

proposed fluorometry measurements are 

redundant and less informative than the 

droplet size measurements. They 

suggested that collection of these 

measurements be optional and handled 

on a case-by-case basis. This commenter 

also requested that EPA substantiate the 

need to replace the existing SMART 

protocols, which provide similar 

monitoring approaches including the 

use of simple fluorometry in the 

SMART Tier II protocol. 

Another commenter suggested 

additional resources for planning and 

conducting sample collection and 

monitoring in the field. They indicated 

that the use of SMART Tier III 

fluorometry tows could facilitate the 

collection of before and after treatment 

samples from outside and inside the 

slick area. 

Other commenters expressed support 

for the proposed fluorometry 

measurements, but requested 

clarification related to the use of in-situ 

fluorometry in the response context. 

These commenters suggested that EPA 

clarify that oil weathering and 

dispersion can impact the fluorescence 

of oil components. These commenters 

also indicated that site-specific 

calibration may be necessary in 


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response to changing turbidity or 

particle size distribution. A commenter 

suggested that EPA should make it clear 

that without measurement of 

fluorescence signatures (fluorescence 

measures across multiple wavelengths), 

most commonly used in-situ 

fluorometers only provide an 

approximate indication of oil in the 

water column. These commenters 

requested that EPA clarify that these 

methods cannot distinguish oil signals, 

and added that most dispersants 

fluoresce as well, potentially adding to 

difficulties interpreting in-situ 

fluorescence measurements. 

The Agency agrees that collection of 

samples from outside and inside the 

slick area prior to and after dispersant 

application serves to inform the initial 

effectiveness of surface dispersant 

application. SMART Tier II and III 

protocols similarly note three primary 

target locations: (1) Ambient 

background water (no oil); (2) oiled 

surface slicks prior to dispersant 

application, and (3) post-application, 

after the oil has been treated with 

dispersants. EPA emphasizes that these 

water column sampling requirements 

are not replacing the SMART protocols 

and that EPA assumes the SMART Tier 

III protocol is also being implemented as 

part of the response. EPA is requiring 

that sample collection under the new 

monitoring requirements follow 

established standard operating and 

quality assurance procedures. 

The Agency disagrees that 

fluorometry is a redundant 

measurement. For crude petroleum oils, 

the aromatic fraction is responsible for 

the fluorescence property of petroleum. 

Instruments that measure particle size, 

such as the LISST, do not distinguish 

between oil droplets and other types of 

particles in the same size range. 

Fluorometers can be targeted to the type 

of oil discharged and the excitation and 

emission wavelengths chosen should 

match the aromatic properties of the oil 

discharged. Fluorescence is a valuable 

screening tool deployed during a 

response, providing a rapid indication 

of potential dispersed oil in the water 

column, as well as an indicator of 

dispersion effectiveness. The final rule 

requires the responsible party to 

conduct a fluorescence intensity 

analyses on water samples collected to 

determine fluorescence signatures of the 

dispersed oil. To the extent the 

commenter believes that most 

dispersants fluoresce, potentially adding 

to the difficulty interpreting in-situ 

fluorescence measurements, the Agency 

expects this concern will be addressed 

in the DMQAPP. 

iii. Dissolved Oxygen (DO) (Subsurface 

Only) 

A commenter indicated support for 

the collection of DO samples and agreed 

with the proposed approach of using the 

Winkler titration method to verify 

sample results. A commenter requested 

that the proposed rule be updated to 

require DO measurements using the best 

available devices. They also indicated 

that measurement verification using 

Winkler titration is impractical and 

outdated. They recommended instead 

that verification be conducted by the 

use of consistent sensor cleaning 

procedures, calibration tests, and 

redundant sensors which can be 

compared. In an effort to avoid slowing 

the process and information flow, they 

recommended that verification should 

only be required on a fraction of 

collected samples instead of for every 

sample. 

The Agency recognizes that relying 

solely on measurements from in-situ 

oxygen instruments may lead to an 

erroneous interpretation of oxygen data. 

While the Agency does not require 

Winkler titration as confirmatory 

analysis in the final rule, the Agency 

believes that ex-situ DO measurements 

should generally be conducted using 

Winkler titrations to confirm in-situ DO 

measurements and notes that the OSC 

can require DO measurements be 

conducted using Winkler titrations if 

necessary. The Agency disagrees that 

measuring DO using Winkler titrations 

is impractical and outdated. For 

example, the use of Winkler titrations to 

measure dissolved oxygen provides for 

accurate measurements in subsurface 

waters where DO may already be low. 

Additionally, the final rule does not 

state the number of samples required for 

DO verification because this and the 

confirmatory analysis methodology 

should be addressed in the DMQAPP to 

ensure that DO measurements follow 

established standard operating and 

quality assurance procedures that are 

reliable and defensible. 

The Agency agrees with commenters’ 

concerns regarding tailoring DO 

measurements. DO is an important 

variable to monitor in the application of 

dispersants, particularity in subsurface 

waters that may inform operational 

decisions. For surface dispersant 

application, DO is expected to be higher 

in the mixed layer in the surface water. 

Because DO is expected to be higher in 

the mixed layer of the surface water, the 

Agency is not finalizing the proposed 

DO requirements for surface dispersant 

application. However, the Agency 

strongly recommends RRTs and OSCs, 

as part of their authorized activities 

under the NCP, consider adding DO as 

a monitoring requirement for surface 

dispersant application in surface waters 

where DO is believed to be limited. 

iv. Total Petroleum Hydrocarbons, 

Individual Resolvable Constituents, 

Including Volatile Organic Compounds, 

Aliphatic Hydrocarbons, Monocyclic, 

Polycyclic, and Other Aromatic 

Hydrocarbons, Including Alkylated 

Homologs, and Hopane and Sterane 

Biomarker Compounds 

A commenter expressed support for 

the proposed requirements to analyze 

TPHs, individual resolvable 

constituents, including volatile 

petroleum hydrocarbons and branched/ 

normal aliphatic hydrocarbons. A 

commenter also indicated support for 

the requirements to analyze monocyclic, 

polycyclic, and other aromatic 

hydrocarbons, including their alkylated 

homologs and hopane/sterane 

biomarker compounds. They suggested 

that results from these analyses can 

inform forensic assessment of collected 

samples. A commenter suggested that 

EPA should specify a standard 

analytical method for performing these 

analyses (from the multiple methods 

available) for water column samples. A 

commenter indicated that, as discussed 

by EPA, measurement of TPH alone is 

inadequate when attempting to assess 

the fate and effects of dispersed oil 

during a response. A commenter also 

communicated support for the proposed 

rule, adding that identifying 

concentrations of oil and associated 

components, as opposed to only the 

presence or absence of oil, is critical. 

A commenter suggested that EPA 

adopt quick-screening methods for 

sampling TPHs by means of a hand-held 

gas chromatograph flame ionization 

detector (GC–FID). They indicated that 

detailed analysis for these components 

will not inform response decisionmaking and should instead be 

completed as part of the NRDA process. 

This commenter also suggested that the 

analytical requirements should apply to 

a fraction of the collected samples as 

opposed to every water sample. 

EPA did not propose to use only TPH 

measurements to assess the fate and 

effects of dispersed oil, but rather 

included it along with other monitoring 

approaches in the final rule to assess the 

fate and effects of dispersed oil. The 

Agency is not specifying the type of 

analytical equipment or methods 

needed for sample collection. The 

Agency believes that standard operating 

procedures should describe the 

appropriateness of the sampling method 

and should be included in the 

DMQAPP. 


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2Walters, C. (2021). Petroleum. In Kirk-Othmer 

Encyclopedia of Chemical Technology, (Ed.). 

https://doi.org/10.1002/ 

0471238961.1518090702011811.a01.pub3. 

The Agency disagrees that the 

detailed analysis of oil constituents is 

more appropriate for the NRDA process, 

and believes that comprehensive 

monitoring in certain discharge 

situations is necessary to determine the 

overall effectiveness of dispersants and 

should extend beyond the initial 

dispersant application to include the 

transport and environmental effects of 

the dispersant and dispersed oil in the 

water column. The final rule requires 

that sample collection follow 

established standard operating and 

quality assurance procedures that are 

reliable and defensible. Additionally, 

the final rule does not state the number 

of water samples required for analysis 

because this is to be determined on a 

case-by-case basis. 

v. Methane, if Present (Subsurface Only) 

A commenter responded to this 

section of the proposed rule which 

requires the measurement of methane in 

water column samples during response 

activities. This commenter stated that 

monitoring of methane is unnecessary 

because it is linked to potential oxygen 

depletion, and therefore, is sufficiently 

covered with the monitoring 

requirements for DO. 

The Agency agrees that methane 

biodegradation may lead to oxygen 

depletion but disagrees that it is 

sufficiently covered by the monitoring 

requirements for DO. Depletion of DO 

may be caused by other factors such as 

the biodegradation of lower molecular 

weight alkanes. Should DO depletion 

occur, understanding the correlation of 

potential substrates to DO is an 

important factor relative to the effects of 

dispersant use and may inform response 

decision-making. 

vi. Heavy Metals Analysis, Including 

Nickel and Vanadium 

Some commenters expressed support 

for the proposed updates. They agreed 

that heavy metals should be analyzed in 

monitoring samples, including nickel 

and vanadium concentrations. A 

commenter expressed concern that the 

analysis of heavy metals in water 

column samples does not have any 

relevance to monitoring of dispersed oil 

and does little to inform response 

decision-making. The commenter 

indicated they see no operational 

reasoning behind the collection of these 

data and suggested that the requirement 

for heavy metal analyses would lead to 

unnecessary delays and costs during 

response efforts. 

The Agency disagrees that the 

analyses of heavy metals in water 

column has no relevance to monitoring 

of dispersed oil and does little to inform 

response decision-making. Crude 

petroleum oil may contain heavy 

metals, including nickel and 

vanadium.2 The December 17, 2010 

OSAT report entitled ‘‘Summary Report 

for Sub-Sea and Sub-Surface Oil and 

Dispersant Detection: Sampling and 

Monitoring’’ specifically included 

nickel and vanadium as part of the 

water sampling analyses. Furthermore, 

EPA specifies that dispersant products 

must be analyzed for arsenic, cadmium, 

chromium, copper, lead, mercury, 

nickel, zinc, plus any other metals that 

may be reasonably expected to be in the 

product sample as part of the NCP 

product listing requirements under 40 

CFR 300.915(a)(11)(i). Dispersing oil 

may increase the bioavailability of those 

heavy metals to marine organisms. In 

addition, monitoring heavy metals 

serves to inform water quality standards 

and thus is an important parameter to 

include in the monitoring requirements. 

The Agency does not expect these 

monitoring requirements to lead to 

delays given the flexibility provided 

under the new daily reporting 

provisions. Furthermore, the Agency 

disagrees with the characterization that 

these analyses lead to unnecessary costs 

for the reasons stated above in this 

paragraph and elsewhere in this 

Response to Comments document that 

address the appropriateness of this final 

action. 

vii. Turbidity 

Commenters indicated support for the 

proposed turbidity measurement 

requirement. A commenter stated that 

turbidity measurements are useful for 

determining the potential for 

dispersants and other products to act as 

sinking agents. The commenter 

suggested that in cases where turbidity 

may cause treated oil to sink, the use of 

dispersants or other treating agents 

should be prohibited. 

A commenter who also indicated 

support for the proposed requirements 

for the collection of turbidity data 

agreed with EPA regarding concerns 

about the potential for agents to enhance 

the formation of oil-mineral aggregates 

(OMA) and marine oil snow (MOS) in 

the water column, putting benthic 

ecosystems at risk. 

The Agency acknowledges 

commenters’ support for the turbidity 

requirement. Turbidity is a general 

measure of water clarity and is 

measured by how much the amount of 

material suspended in water decreases 

the passage of light through the water. 

Suspended materials may include soil 

particles (clay, silt, and sand), algae, 

plankton, microbes, and other 

substances. Turbidity measurements 

provide a relatively quick assessment of 

suspended materials in the water bodies 

and are useful in determining the 

presence of materials that could 

interfere with oil particle size 

measurements. Finally, turbidity is 

included as a monitoring parameter in 

the SMART Tier III protocol. 

The Agency notes that prohibition of 

the use of chemical agents is not 

addressed in this final action. 

Furthermore, dispersants are not sinking 

agents because they are not intended to 

sink the oil to the bottom of a water 

body and are defined separately from 

sinking agents in the NCP. However, the 

Agency recognizes concerns regarding 

the potential for dispersed oil as one 

pathway to contribute to Marine Oil 

Snow Sedimentation and Flocculent 

Accumulation (MOSSFA) in the water 

column that could potentially lead to 

settling. This final action does not 

prevent the OSC or RRTs, as part of 

their authorized activities under the 

NCP, from requiring additional 

monitoring parameters, which may 

include benthic biota monitoring, 

sediment characterization, and other 

physical measurements of solids in the 

water (e.g., total suspended solids). 

viii. Water Temperature, pH, and 

Conductivity 

The Agency received no comments 

specific to these provisions and is 

finalizing the requirements as proposed. 

ix. Carbon Dioxide (CO2)—Removed 

A commenter responded to the 

section of the proposed rule which 

requires the measurement of CO2 in 

water column samples during response 

activities. This commenter indicated 

that the proposed rule is unclear in term 

of the benefits that CO2 monitoring 

provides that are not already provided 

by DO monitoring. They also expressed 

concern that there is a limit to the 

number of sensors that can be deployed 

from a vessel during a response. The 

commenter stated that adding CO2 to the 

analysis suite complicates the 

deployment of these instrument arrays. 

The Agency notes that the aerobic 

biodegradation of oil constituents not 

only consumes DO but would also 

produce CO2. Increases in the CO2

concentration that coincide with 

decreases in the DO concentration 

would provide credible evidence that 

biodegradation of oil is occurring. The 

Agency proposed measuring the in-situ 

CO2 for subsurface dispersant 


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applications because the Agency 

believed it would be a good indicator of 

microbial oxidation and inform the OSC 

on potential fate. However, the Agency 

agrees that adding CO2 sensors may not 

always be practicable and that the other 

monitoring requirements indirectly 

inform potential biodegradation. 

Therefore, the Agency is not finalizing 

this proposed requirement at this time. 

The RRTs and OSCs, as part of their 

authorized activities under the NCP, 

may still consider adding CO2

measurements and other biodegradation 

characterization assessments on a caseby-case basis. 

D. Oil Distribution Analyses 

The new provisions include 

requirements for the responsible party 

to characterize the dispersant 

effectiveness and oil distribution, 

including trajectory analysis. As the 

OSC’s oversight role over the 

responsible party is already established 

in the NCP, the Agency has removed the 

phrase ‘‘in consultation with the OSC’’ 

for § 300.913(c) the oil distribution 

analysis. This characterization is to 

consider available technologies, account 

for the condition of oil, dispersant, and 

dispersed oil components from the 

discharge location, and describe any 

associated uncertainties. 

Several commenters supported EPA’s 

proposed language for § 300.913(c). A 

commenter supported this section but 

commented that the regulation should 

recognize the limitations of oil 

distribution analyses in areas that lack 

good ocean current predictive models or 

observational data. Another commenter 

expressed strong support for efforts to 

elucidate dispersant effectiveness but 

noted that effectiveness monitoring 

should be used only when it does not 

impede response operations. Another 

commenter stated that EPA should 

acknowledge that the available methods 

for anticipating the movement of 

dispersed oil plumes are limited and 

may complicate the monitoring process. 

A commenter noted that sampling and 

monitoring programs should 

acknowledge uncertainties about where 

an oil plumes may travel. 

The Agency recognizes oil 

distribution analyses may be affected by 

the data quality used to inform the 

analysis, which also includes 

parameters based on assumptions. In 

addition, trajectory models, which are 

used to predict the movement of 

dispersed oil plumes, may have 

uncertainties associated with modeling 

parameters. EPA is amending the 

regulatory text to clarify that oil 

distribution analyses includes trajectory 

modeling since this is an essential 

aspect of dispersed oil movement as the 

result of dispersant application, 

particularly in areas where water 

currents are highly influential to the oil 

discharge and inform water sampling 

locations. EPA agrees with concerns that 

these uncertainties could affect 

sampling and monitoring programs. 

Therefore, the Agency is amending the 

regulatory text to recognize 

uncertainties associated with trajectory 

modeling as part of the distribution 

analysis. 

A commenter suggested including a 

NOAA SSC in the review of data 

provided in this section to provide 

valuable credibility and support to the 

OSC, while noting that perceptions of 

the responsible party directing the 

process should be avoided. Another 

commenter suggested EPA might want 

to consider including directions for the 

use of local expertise in these analyses. 

The NCP describes the role of SSCs 

under 40 CFR 300.145(c) to include 

providing scientific support for 

operational decisions and for 

coordinating on-scene scientific activity 

during a response, as requested by the 

OSC. Coordinating on-scene scientific 

activity during a response may include 

consideration of input from local 

experts. The NCP also describes the 

OSC’s roles and responsibilities under 

40 CFR 300.120, which includes 

directing response efforts and 

coordinating all other efforts at the 

scene of a discharge. As a result, EPA 

believes the NCP already sufficiently 

recognizes the SSC’s role in support of 

the OSC. 

Some commenters stated that the rule 

needs to be clearer on what is required 

for surface monitoring and what is 

required for subsea monitoring, 

suggesting that each subsection should 

be divided into the aspects. These 

commenters also suggested that EPA 

should consider changing ‘‘best 

available technologies’’ to ‘‘best 

practicable technologies’’ in this 

section, to avoid equipment that is not 

suitable for field conditions. A 

commenter stated that the best available 

technology requirement should 

acknowledge aerial photography as a 

tool to measure effectiveness, as this 

was a key method of assessment during 

the Deepwater Horizon response. The 

commenter also stated that the relative 

effectiveness of surface application 

should be determined using the SMART 

protocols, noting that the amount of oil 

on the surface to which dispersants are 

being sprayed is impossible to 

determine, so effectiveness can’t be 

quantified, and that the analytical 

equipment often cannot return to the 

spray site in time to capture the 

information requested as the dispersant 

plume quickly dilutes or cannot be 

found. 

The Agency believes the final rule is 

clear relative to the requirements for 

subsurface and surface monitoring and 

that dividing the monitoring section 

into separate subsections is 

unnecessary. The Agency has noted in 

the regulatory text and provided 

additional clarification in this preamble 

to delineate where requirements are 

different. EPA recognizes the 

commenter’s concern relative to the 

term ‘‘best available technology’’ but 

disagrees that it should be changed to 

‘‘best practicable technologies’’ to avoid 

equipment that is not suitable for field 

conditions. The proposal did not specify 

equipment in the Oil Distribution 

Analyses section, but rather included 

the term ‘‘best available technology’’ to 

capture advances in technology (e.g., 

modeling and equipment). The intent 

was to ensure these advances in 

characterizing the dispersant 

effectiveness and oil distribution 

continue to be implemented. For 

example, oil distribution is typically 

informed by trajectory modeling to 

predict the movement of dispersed oil 

plumes. The Agency recognizes that 

improvements to trajectory modeling 

continue over time and seeks to 

incorporate such advancements in the 

new monitoring requirements. The 

Agency is finalizing the term 

‘‘considering available technologies’’ 

instead of the term ‘‘best available 

technology.’’ Available technologies 

used and their applicability to the 

specific discharge situation should be 

described in the DMQAPP. The Agency 

believes this new provision provides the 

opportunity for the OSC to consider 

relevant technologies and addresses the 

intent to capture advances in 

technology. 

EPA disagrees that aerial 

photography, as a tool to measure 

effectiveness, should be acknowledged 

as a best available technology. EPA 

recognizes that the SMART Tier I 

protocol bases initial dispersant 

effectiveness assessment using 

photographic job aids or advanced 

remote sensing instruments flying over 

the oil slick with a trained observer. 

EPA also recognizes that NOAA 

developed a Dispersant Application 

Observer Job Aid, which is a field guide 

for responders trained in observing and 

identifying dispersed and undispersed 

oil, describing oil characteristics, and 

reporting this information to decisionmakers. However, EPA is unaware of 

any similar NRT-approved protocols or 

NOAA-developed job aids to assess the 

initial effectiveness of subsurface 


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dispersant application. Furthermore, the 

requirements for monitoring surface 

dispersant application for atypical 

dispersant applications necessitate 

specific considerations beyond those 

addressed by SMART. According to the 

2013 NRT Environmental Monitoring for 

Atypical Dispersant Operations 

guidance document, such atypical uses 

of dispersant during a response were not 

addressed in the existing SMART 

monitoring program. While some 

monitoring requirements are only 

included in the SMART Tier III protocol 

(e.g., turbidity, pH, conductivity, 

temperature), other requirements (e.g., 

in-situ droplet size distribution) 

important to understanding dispersant 

effectiveness are not. 

A commenter stated that the relative 

effectiveness of the surface application 

should be determined by using the 

SMART protocols, but also noted the 

analysis equipment often cannot return 

to the spray site in time to capture the 

information requested, because the 

dispersant plume quickly dilutes or 

cannot be found. According to the 

SMART protocols, Tier II and III use 

towed fluorometry to characterize 

effectiveness, requiring the vessel to 

pass through the oil slick after 

dispersant is applied. For the SMART 

Tier II protocol, the team collects data 

in three primary target locations: (1) 

Ambient background water (no oil); (2) 

oiled surface slicks prior to dispersant 

application, and (3) post-application, 

after the oil has been treated with 

dispersants. The Tier III protocol 

follows procedures from the Tier II 

protocol, and in addition collects 

information on the transport and 

dispersion of the oil in the water 

column to help verify that the dispersed 

oil is diluting toward background levels. 

The commenter’s characterization that 

the dispersant plume quickly dilutes or 

cannot be found seems contrary to their 

recommendation to use the SMART 

protocols data collection procedures. 

The Agency notes that the commenter 

did not provide supporting evidence 

that the dispersed oil plume always 

quickly dilutes and cannot be found. 

The assumption that dispersed oil 

plume quickly dilutes and cannot be 

found does not account for the many 

factors that impact dispersant 

effectiveness, including for example the 

specifics of the discharge situations 

(e.g., continuous discharges), the 

weathering of the oil, and the mixing 

conditions. Both the SMART protocols 

and the monitoring provisions finalized 

in this action are designed to provide 

feedback on the efficacy of dispersant 

application in dispersing the oil. The 

Agency believes monitoring provides 

information on dispersant effectiveness, 

including for those occurrences of nondetection of dispersed oil after 

dispersant application. The Agency also 

notes that advances in technology using 

remote sensing vehicles may allow for 

data collection prior to and after 

dispersant application with responders 

in an offset area to inform the fate and 

transport of the oil plume. 

A commenter stated the monitoring 

requirements need the concurrence of 

the DOI’s regional response team (RRT) 

representative as well, since these 

results provide information relevant to 

DOI’s trust resources. In addition, a 

commenter stated that because of 

inherent conflict of interest, a qualified 

third party acceptable to the OSC, EPA, 

and the DOI RRT representatives should 

conduct all monitoring. 

EPA recognizes conflicts of interest 

concerns. The Agency notes that the 

NCP addresses the OSC’s oversight role 

of the responsible party as part of the 

OSC’s authority. The final rule does not 

preclude the OSC from seeking a 

qualified third party to conduct 

additional monitoring or from 

consulting with relevant governmental 

agencies, or from performing or having 

a third party perform monitoring. The 

Agency disagrees that decisions 

regarding monitoring of oil distribution 

and weathering are left up to the 

responsible party as the Clean Water Act 

and the NCP give the OSC clear 

authority to direct the responsible party 

during a response. The Agency also 

disagrees that the responsible party is 

the primary advisor for aspects of 

dispersant decision-making and 

monitoring. The monitoring 

requirements are intended to provide 

decision-makers, whose roles and 

responsibilities are described in the 

NCP, with relevant information to 

consider. The monitoring requirements 

do not prevent the OSC and other 

response decision-makers from 

considering monitoring information, 

including monitoring information 

collected by other entities besides the 

responsible party, to also be used to 

inform dispersant use decisions. While 

the final rule places the monitoring 

requirements on the responsible party, 

these requirements should not be 

interpreted or perceived as the 

responsible party directing the process 

or controlling how the dispersant 

effectiveness and dispersed oil fate data 

are interpreted. The Agency notes that 

the NCP already provides for natural 

resource trustee input for dispersant use 

as a response option under 40 CFR 

300.910—Authorization of Use, and 

§ 300.305(e)—Phase II—Preliminary 

assessment and initiation of action. 

E. Ecological Characterization 

The new provisions include 

requirements for the responsible party 

to characterize the ecological receptors 

(e.g., aquatic species, wildlife, and/or 

other biological resources) and their 

habitats that may be present in the 

discharge area and their exposure 

pathways. As the OSC’s oversight role 

over the responsible party is already 

established in the NCP, the Agency has 

removed the phrase ‘‘in consultation 

with the OSC’’ for § 300.913(d) 

ecological characterization. As part of 

this characterization, the responsible 

party must include in this 

characterization those species that may 

be in sensitive life stages, transient or 

migratory species, breeding or breedingrelated activities (e.g., embryo and 

larvae development), and threatened 

and/or endangered species that may be 

exposed to the oil that is not dispersed, 

the dispersed oil, and the dispersant 

alone. The responsible party must also 

estimate an acute toxicity level of 

concern for the dispersed oil using 

available dose/response information 

relevant to potentially exposed species. 

Several commenters agreed with 

EPA’s proposed language requiring 

ecological characterization and the use 

of species sensitivity distributions and 

ecotoxicity benchmarks. These 

commenters emphasized that careful 

monitoring of biological receptors is 

important but commented that this 

should be done by independent 

scientists, and not by the responsible 

party because of conflict of interest. 

Another commenter generally supported 

the proposed additions to § 300.913(d). 

Another commenter stated that 

ecological characterizations should be 

done by scientists on behalf of local 

resource agencies, given that the 

required information can be complex 

and subtle, requiring expertise on 

seasonality, life cycles, habitat 

interactions, important and sensitive 

habitats, and other physical and 

biological factors that influence how 

ecosystem components respond to oil, 

dispersant, and dispersed oil. 

Some commenters offered 

amendments to this section. A 

commenter stated that EPA should 

require consultation with the DOI and 

Department of Commerce (DOC) natural 

resource trustees, not just the OSC, 

when developing ecological-receptor 

characterization. Another commenter 

stated that sensitive receptors and 

toxicity thresholds should be developed 

at a local/regional level based on the 

marine ecosystem, food web, abundance 


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of primary and secondary producers, 

and other factors that influence 

ecotoxicity, given significant variation 

throughout the United States. 

The Agency recognizes commenters’ 

position that independent scientists 

conduct monitoring of biological 

receptors, rather than the responsible 

party, because of potential conflict of 

interest. The Agency notes that the NCP 

addresses the OSC’s oversight role of the 

responsible party. The monitoring 

amendments in the final rule do not 

preclude the OSC from seeking 

independent parties to conduct 

additional monitoring, including from 

local, state and federal agencies. EPA 

agrees with concerns that the required 

information can be complex and subtle, 

requiring expertise on seasonality, life 

cycles, habitat interactions, important 

and sensitive habitats, and other 

physical and biological factors that 

influence how ecosystem components 

respond to oil, dispersant, and 

dispersed oil. Furthermore, the NCP 

provides for natural resource trustee 

input for dispersant use as a response 

option under 40 CFR 300.910— 

Authorization of Use, and § 300.305(e)— 

Phase II—Preliminary assessment and 

initiation of action. Therefore, the 

Agency does not believe it is necessary 

for additional requirements under the 

monitoring section to recognize the role 

and responsibilities of natural resource 

trustees relative to the responsible party 

developing ecological-receptor 

characterization. 

The Agency agrees with commenters 

that sensitive receptors and toxicity 

thresholds should consider relevant 

local/regional factors. EPA agrees with 

commenters that the review of acute 

toxicity information should include 

actual toxicity test results of potentially 

exposed species in the area of the spill, 

but the Agency also recognizes that the 

use of a surrogate species when 

constructing the species sensitivity 

distribution (SSD) may be necessary if 

relevant toxicity data for site-specific 

species is unavailable. 

Some commenters stated that they 

support environmental monitoring that 

contributes to operational decisionmaking, but also stated that the required 

monitoring to determine possible 

environmental effects is too time 

consuming to support dispersant 

operations decisions and that 

conducting the required ecological 

characterization of the spill site may not 

be possible in the available response 

time frame. The commenters stated that 

if the untreated oil is likely to drift 

ashore and impact a sensitive coastal 

resource within a day or two unless it 

is dispersed, there will be a very finite 

period of time for such considerations 

suggested in the proposed rule. Another 

commenter agreed that monitoring to 

determine possible environmental 

effects is too time consuming and added 

that monitoring required to determine 

possible environmental effects is 

already accommodated within the 

existing Incident Command System 

(ICS) structure (e.g., wildlife team and 

the NRDA team). A commenter stated 

that while known ecological 

benchmarks may be constructive, it is 

not clear how exceedances of the 

thresholds would impact decisionmaking in practice. This commenter 

stated that requiring dispersant 

operations to stop due to a singlespecies exceedance may result in higher 

environmental damage overall. The 

commenter suggested that SSDs are a 

misuse of the method that is counter to 

establishing frameworks appropriate to 

dynamic ocean settings. The 

commenters stated that NEBA should be 

the basis to make operational decisions 

on whether dispersants and/or other 

agents should be used during a 

response. 

The Agency agrees with comments 

that support environmental monitoring 

as contributing to operational decisionmaking, but disagrees with the comment 

that monitoring to determine possible 

environmental effects is too time 

consuming to support dispersant 

operations decisions and that 

monitoring required to determine 

possible environmental effects is 

already accommodated within the 

existing ICS organizational structure 

(e.g., wildlife team and the NRDA team). 

A goal of NRDA is to compensate the 

public for losses to natural resources 

and resource services resulting from 

injury as a result of an oil discharge. 

While a NRDA team may be recognized 

in the ICS, it is independent of, and 

complementary to, the response action. 

The monitoring requirements are 

tailored to dispersant use and to inform 

response decision-making regarding that 

use, while other ICS organizations focus 

on general environmental effects of the 

response, not necessarily related to 

dispersant use. The Agency also 

disagrees that conducting the required 

ecological characterization of the spill 

site may not be possible in the available 

response time frame. The premise that 

untreated oil is likely to drift ashore and 

impact a sensitive coastal resource 

within a day or two unless it is 

dispersed implies that no other response 

options are available to prevent impacts 

to sensitive coastal resources and that 

these sensitive coastal resources are the 

sole response priority to consider in 

determining dispersant use. Dispersants 

are not the only option for oil spill 

response: Other response options may 

also prevent or lower overall 

environmental damage. When 

responding under the NCP, decisions on 

dispersants and/or other chemical 

agents made by the OSC and other 

federal agencies with roles and 

responsibilities under the NCP during a 

response are to be made in accordance 

with the NCP. While there is no 

prohibition on the use of environmental 

tradeoff methodologies, the use of such 

methodologies must be in conformance 

with the statutory and regulatory 

authorities that govern dispersant use. 

Furthermore, the Agency noted in the 

proposed rule (80 FR 3398) relevant 

sources of information (e.g., 

environmental assessments or 

statements, Federal and state 

environmental databases, ACP-Fish and 

Wildlife and Sensitive Environments 

Plan Annex; NOAA-Environmental 

Sensitivity Indices) that the responsible 

party may refer to in developing the 

characterization of ecological receptors. 

In addition, applicable facility or vessel 

response plans may also have relevant 

information. It is important to note that 

this final action is not requiring this 

information to be included in these 

planning documents, rather that these 

documents may serve as resources of 

relevant information. Finally, it is 

unclear how methodologies cited and 

supported by commenters evaluate 

environmental trade-offs for decisionmaking without the characterization of 

ecological receptors. 

Another commenter noted that the 

phrase ‘‘but not be limited to’’ should be 

added to a phrase in the proposal so the 

term ‘‘include’’ is not interpreted as 

limiting. ‘‘The Agency believes that the 

ecological characterization should 

include, but not be limited to, those 

species that may be in sensitive life 

stages . . . .’’ 

The Agency acknowledges the 

commenter’s suggestion that the phrase 

‘‘but not be limited to’’ be added to a 

phrase in the proposal so the term 

‘‘include’’ is not interpreted to be 

limiting, so that the sentence reads: 

‘‘The Agency believes that the 

ecological characterization should 

include, but not be limited to, those 

species that may be in sensitive life 

stages . . .’’. The Agency did not intend 

and does not believe that the term 

‘‘including’’ is limiting. However, the 

Agency is modifying the sentence in the 

proposal to reflect this suggested change 

for clarity. 

A commenter stated that the 

regulation should specify that an 

invitation to participate, at least in a 


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consultation and review role, should be 

extended to the appropriate federal, 

state, and local authorities. A 

commenter stated that EPA should add 

to § 300.913(d) that a DOI representative 

should participate in this process. 

Applicable Area Contingency Plans 

include input from relevant local, state, 

and federal agencies whose roles and 

responsibilities are identified in the 

NCP for the Area Committee. While the 

Agency did not propose to amend 

requirements for Area Contingency 

Planning and those requirements are 

outside the scope of this final action, 

EPA recognizes the Area Committee’s 

role in ecological characterization as 

provided in the Fish and Wildlife and 

Sensitive Environments Plan in 40 CFR 

300.210(c)(4). The final rule does not 

prohibit the OSC from seeking input 

from the appropriate federal, state, and 

local authorities. 

A commenter asked EPA to clarify 

that toxicity monitoring is required 

following dispersant applications. 

Another commenter suggested the 

following revisions to EPA’s approach 

to ecotoxicity benchmarks (EBs): 

• The proposed approach will not 

fully characterize potential impacts on 

biological resources. Where EBs exist for 

these other hydrocarbon constituents, 

measured concentrations of those 

parameters need to be compared to 

these more specific toxicological 

benchmarks; 

• The toxicity level should also 

include the dispersant since it has been 

found that dispersants alone are 

generally less toxic than oil, but that 

most dispersant and oil mixtures are 

more toxic than oil alone; 

• The proposed approach to compare 

water concentrations with EBs for heavy 

metals and total petroleum hydrocarbon 

will not fully characterize potential 

impacts on biological resources; 

• Examining only acute toxicity data 

does not capture the full effects of a 

spill, since it does not take into account 

indirect or sub-lethal effects, which 

could also alter populations and 

ecological communities; 

• The review of acute toxicity 

information should include actual 

toxicity test results of potentially 

exposed species in the area of the spill, 

since the use of a surrogate species 

could vastly underestimate the actual 

toxicity of species in the area; 

• EPA should calculate separate SSDs 

for unique environments; 

• Toxicity testing using natural light 

will be important given the well 

documented phenomenon of photoenhanced toxicity of certain oil 

constituents; and, 

• The commenter expressed concern 

about EPA’s approach to derive chronic 

toxicity benchmarks by applying safety 

factors to the acute toxicity EBs because 

the specific chemicals and toxicity 

mechanisms involved in acute toxicity 

are different from those involved in 

chronic toxicity. 

The proposed rule discussed an 

approach to monitor acute toxicity in 

the water column by comparing TPH 

concentrations in water samples to TPHbased EBs or to chronic toxicity 

benchmarks derived by applying a 

safety factor to the acute toxicity EBs. 

The Agency stated that SSDs, which 

allow for species relevant to the location 

of the discharge to be considered, could 

be developed for representative oils 

(e.g., crude oils) using existing acute 

toxicity values where sufficient species 

diversity are available. The Agency 

acknowledges that examining only acute 

toxicity data does not capture the full 

effects of a spill because it does not take 

into account indirect or sub-lethal 

effects. The Agency recognizes that 

specific chemicals and toxicity 

mechanisms involved in acute toxicity 

can be different from those involved in 

chronic toxicity. However, applying 

safety factors to the acute toxicity-based 

benchmarks to derive chronic 

benchmarks is not intended to discern 

toxicity mechanisms; rather it is 

intended to account for potential toxic 

impacts to relevant species. 

Furthermore, EPA recognizes that not 

all acute toxicity data is derived using 

similar exposure conditions and that 

SSDs should be calculated from acute 

toxicity data that reflects the sitespecific exposure profiles. Finally, EPA 

recognizes the proposed approach does 

not fully characterize potential impacts 

on biological resources from other 

exposure mechanisms that may cause 

adverse impacts, such as oil smothering 

and coating. 

While the Agency did not propose to 

establish specific EB thresholds, EPA 

recognizes that EBs should be consistent 

with information in applicable ACPs. 

The Agency noted in the proposed rule 

that EBs could be computed from the 

fifth percentile of the SSD as the hazard 

concentration 5 percent (HC5), as they 

are considered protective of 95 percent 

of species, have been used by EPA for 

developing ambient water quality 

criteria, and are generally accepted by 

the international risk science 

community. For the reasons above, EPA 

disagrees with commenters who 

suggested that SSDs is counter to 

establishing frameworks appropriate to 

dynamic ocean settings. Furthermore, 

EPA is clarifying the final rule text to 

specify that acute toxicity levels of 

concern are determined using the SSD 

approach. 

EPA did not propose in the 

monitoring section that dispersant 

operations stop due to a single-species 

exceedance. However, EPA does not 

agree that stopping dispersant use over 

a single species exceedance will 

necessarily result in higher 

environmental damage overall. 

Dispersants are not the only available 

response tool, and other response 

options may also lower overall 

environmental damage. EPA believes 

that Congress’ primary intent in 

regulating products (e.g., dispersants) 

under Subpart J is to protect the 

environment, including the water 

column, from possible deleterious 

effects caused by the application or use 

of these products. Decisions on the use 

of dispersants and other agents used 

during a response are to be made in 

accordance with the NCP and the 

governing statute(s). Environmental 

tradeoff methodologies where 

dispersants are considered must be in 

conformance with the statutory and 

regulatory authorities that govern 

dispersant use. 

F. Immediate Reporting 

The new provisions require the 

responsible party to immediately report 

to the OSC and, in coordination with 

the OSC, to the RRT any: (1) Deviation 

of more than 10 percent from the mean 

hourly dispersant use rate for subsurface 

application, based on the dispersant 

volume authorized for 24 hours use, and 

the reason for the deviation; and (2) 

ecological receptors of environmental 

importance, and any other ecological 

receptors as designated by the OSC or 

the Natural Resource Trustees, 

including any threatened or endangered 

species that may be exposed based on 

dispersed plume trajectory modeling 

and level of concern information. 

Several commenters supported EPA’s 

proposed immediate reporting 

provisions. Some commenters 

advocated for a 10 percent threshold for 

reporting deviations from the planned 

application rates for surface application 

in addition to subsurface application, 

while another commenter stated they do 

not support any subsurface application. 

A commenter stated that because the 

responsible party is already required to 

report hourly surface application rates 

on a daily basis under § 300.913(f), the 

commenter believes that adding a 

requirement for immediate reporting 

requirement in the case of deviations 

will add little, if any, marginal 

compliance costs. 

In this action, the Agency is not 

including a reporting requirement of a 


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10 percent deviation threshold for 

reporting requirement from the planned 

application rates for surface dispersant 

application. The Agency recognizes 

differences in the subsurface and 

surface application of dispersants. For a 

continuous discharge, subsurface 

applications may occur uninterrupted at 

relatively few discharge locations. 

Surface application is typically made by 

one or more aircraft which have a 

relatively limited capacity to apply 

dispersant over multiple oil patches. 

This limited capacity requires aircraft to 

refuel and resupply. While multiple 

aircraft may be used, deviations of 

surface dispersant application rate from 

a single aircraft are not expected to 

confound monitoring data interpretation 

in a similar manner as 10 percent 

deviation from subsurface application. 

Furthermore, the Agency is requiring 

daily reports of the specific hourly 

dispersant application rate and total 

amount of dispersant used for surface 

application to monitor dispersant use 

activity. The daily reports will inform 

changes in surface dispersant 

application usage. Finally, the RIA does 

not include a compliance cost because 

the proposed provision addressing more 

than 10 percent deviation for surface 

applications is not being finalized. 

A commenter stated that all reports 

should simultaneously be made public. 

EPA recognizes the commenter’s request 

that all reports should simultaneously 

be made public. While EPA shares the 

commenter’s desire to make this 

information publicly available in a 

timely fashion, the Agency disagrees 

that this reporting should occur 

simultaneously with reporting to the 

OSC. Public communications 

authorities under the NCP are outside 

the scope of this action. The Agency 

notes that the OSC directs response 

efforts and coordinates all other efforts 

at the scene of a discharge in accordance 

with the NCP, including public 

information and community relations. 

The NCP provides instruction to the 

OSC on ensuring all appropriate public 

and private interests are kept informed 

and that their concerns are 

appropriately considered throughout a 

response. The Agency believes the OSC 

should be given the opportunity to 

evaluate response-related information 

and communicate relevant results to the 

public within the existing NCP 

framework. 

A commenter suggested that specifics 

required in § 300.910(e) should be 

provided to the OSC and RRT. A 

commenter requested that any field 

observations of impacts to sensitive 

species be reported to the OSC and 

trustee agencies. This could include 

dispersant applications which 

inadvertently spray birds, marine 

mammals, sea turtles, or other sensitive 

species. While the commenter refers to 

§ 300.910(e), the Agency believes that 

the commenter intended to include 

§ 300.913(e) because the heading of the 

section to the comment referred to 

§ 300.913(e–f). The Agency agrees that 

the RRT, which includes the natural 

resource trustees, should receive this 

information within the command 

structure of the National Response 

System (NRS). Working within the 

command structure provides an orderly 

and efficient review of monitoring and 

other response-related information by 

the OSC and allows the OSC to develop 

situational awareness and efficiently 

and effectively collaborate with agencies 

designated in the NCP that have 

relevant roles and responsibilities in the 

response. EPA has revised the 

regulatory language in the final rule by 

adding a new provision, § 300.913(g), to 

provide that the responsible party must 

immediately report to the OSC and 

coordinate with the OSC to provide the 

applicable RRT(s) (including any 

incident-specific RRTs) with this 

information. The Agency notes that 

including the RRT(s) as recipients of the 

immediate reporting information 

addresses a commenter’s request to 

include natural resource trustees. 

Some commenters stated that EPA 

should not develop requirements for 

daily authorizations of dispersant 

quantities. Another commenter also 

noted that the rule requires reporting 

based on deviations from authorized 

dispersant application in a 24-hour 

period, stating that EPA should not have 

daily authorizations for dispersant 

application because such restrictions 

would tremendously complicate 

dispersant operations and circumvent 

the NEBA process. 

EPA did not establish requirements 

on daily authorization of dispersant 

quantities in the final rule on the 

monitoring requirements. The Agency is 

establishing an immediate reporting 

provision in this final action to provide 

a margin for variation within 10 percent 

of the mean hourly subsurface 

dispersant application rate to account 

for equipment performance. The Agency 

believes this margin adequately 

accounts for variations in dispersant 

injection equipment without being 

overly restrictive. The intent of the 

requirement is for immediate reporting 

of more than 10 percent deviations for 

the subsurface dispersant application 

that were authorized during that 

reporting period. EPA did not intend to 

require, and § 300.913(e) does not 

establish, that authorization is required 

in 24-hour increments. The OSC makes 

authorization of use decisions within 

the NCP framework. Authorization of 

use is outside the scope of the 

monitoring requirements in this final 

action. While an environmental tradeoff framework may inform dispersant 

use, it is not required under the NCP. 

Results from daily water column 

sampling provide input data to refine 

predictions of the likely dispersed oil 

direction using trajectory modeling and 

may also inform decisions to alter 

dispersant application in order to 

minimize effects on ecological 

receptors, including biological 

resources. 

A commenter stated real-time 

ecological receptor analysis is 

unrealistic and should be part of a 

Consensus Ecological Risk Assessment 

(CERA)/NEBA process. Another 

commenter requested that any field 

observations of impacts to sensitive 

species be reported to the OSC and 

trustee agencies. The new monitoring 

requirements provide that the 

responsible party will characterize the 

ecological receptors (e.g., aquatic 

species, wildlife, and/or other biological 

resources), their habitats, and exposure 

pathways that may be present in the 

discharge area. The Agency understands 

that some ecological receptors are likely 

to be impacted and is clarifying that the 

immediate reporting requirement 

focuses on ecological receptors of 

environmental importance, as well as 

any other ecological receptors as 

identified by the OSC or the natural 

resource trustees, including threatened 

or endangered species that may be 

exposed to dispersed oil based on 

trajectory modeling and the estimated 

acute toxicity level of concern. EPA 

recognizes that the OSC or the natural 

resource trustees may also want to 

include critical habitats as applicable 

within the immediate reporting 

requirements for ecological receptors. 

The NCP already provides an existing 

organizational structure that allows the 

natural resource trustees to relay any 

requests they have regarding the 

monitoring requirements and resulting 

information to the OSC. The Agency is 

revising the regulatory language in the 

final rule to reflect this clarification. 

This revision also addresses a 

commenter’s request to recognize prey 

species which these receptors depend 

upon for food that may be impacted by 

the discharge or the response. 

A commenter said the OSC should 

have discretion to determine the 

frequency of reporting and that the rule 

does not specify what happens if the 

reporting requirements are not met for 

any reason. The Agency recognizes that 


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the OSC may require other immediate 

notifications beyond those provided in 

the final rule and that the final rule 

provides a minimum set of immediate 

reporting criteria. Finally, the Agency 

notes that enforcement of regulatory 

provisions is outside the scope of the 

final rule. The final rule does not 

change any existing enforcement 

authorities. 

G. Daily Reporting 

The new provisions require daily 

reporting by the responsible party to the 

OSC and to the RRT water sampling and 

data analyses collected in § 300.913(b). 

These reports are to include: (1) For 

each application platform, the actual 

amount of dispersant used for each onehour period, and the total amount of 

dispersant used for the previous 24-hour 

reporting period; (2) all collected data 

and analyses of those data within a time 

frame necessary to make operational 

decisions (e.g., within 24 hours of 

collection), including documented 

observations, photographs, video, and 

any other information related to 

dispersant use, unless an alternate time 

frame is authorized by the OSC; (3) for 

analyses that take more than 24 hours 

due to analytical methods, provide such 

data and results as available but no later 

than 5 days after sample collection, 

unless an alternate time frame is 

authorized by the OSC; and (4) 

estimates of the daily transport of 

dispersed and non-dispersed oil and 

associated volatile petroleum 

hydrocarbons, and dispersants, using 

available technology as described in 

§ 300.913(c). 

Section 300.913(f)(1) of the final rule 

was altered to provide clarity. The text 

‘‘For each application platform, the 

. . .’’ was added prior to the draft 

language, to ensure that the reporting 

would be for each platform, instead of 

the response as a whole. The term 

‘‘application platform’’ includes 

individual aircraft, vessels, and any 

other structures, devices, or other means 

that are used to apply dispersants. This 

section was also modified, replacing the 

term ‘‘actual dispersant application rate 

for each one-hour period’’ with ‘‘the 

actual amount of dispersant used for 

each one-hour period’’. This revision 

clarifies that the reported information 

must reflect the actual amount of 

dispersant applied each hour, rather 

than an hourly rate based on the total 

amount of dispersant applied averaged 

over a 24-hour period. The requirement 

is intended to show hourly changes of 

the actual amount of dispersant used, 

which a calculated average hourly rate 

would not provide. This information 

will allow the OSC and RRT to better 

analyze if the application rates are at, 

below, or exceeding the authorized 

quantities, if dispersant use is per 

manufacturer’s recommendations, and if 

the response actions are effective. 

EPA is also revising the regulatory 

text in the final rule to reflect that 

§ 300.913(c) changed ‘‘. . . best 

available technology . . .’’ to ‘‘. . . 

considering available technologies . . .’’ 

which includes trajectory modeling. See 

the Oil Distribution Analyses discussion 

in this preamble. The Agency is also 

revising the final rule text to include 

RRT as recipients of the daily reporting 

information for similar reasons as 

described in Immediate Reporting 

discussion in this preamble. 

Several commenters supported EPA’s 

proposal to require daily reporting of 

sampling and data analyses within a 

time frame necessary for making sound 

operational decisions. However, a 

commenter stated that existing sampling 

and analytical methods might not 

provide complete or accurate 

information. They requested that EPA 

identify suggested methods or models 

that can accurately estimate the ‘‘daily 

transport of dispersed and nondispersed oil’’ with sufficient accuracy 

to inform the coordination of 

monitoring activities. 

EPA acknowledges a commenter’s 

concern that existing sampling and 

analytical methods might not provide 

complete or accurate information. 

However, the Agency believes existing 

sampling and analytical methods 

continue to improve and generally serve 

their intended purpose for decisionmaking during a response. The Agency 

recognizes that there may be other 

sampling and analytical methods used 

to inform other aspects of the response 

as a result of the oil discharge, such as 

those used in injury assessment that are 

conducted to support the NRDA 

process. Results from daily water 

column sampling conducted by the 

responsible party would provide input 

data to refine predictions of the likely 

dispersed oil direction using trajectory 

modeling. The daily reporting 

provisions requires the responsible 

party to report the estimated daily 

transport of dispersed and nondispersed oil, associated volatile 

petroleum hydrocarbons if applicable, 

and dispersants, considering available 

technologies as described in 

§ 300.913(c). The Agency is not 

including suggested methods or models 

to estimate the ‘‘daily transport of 

dispersed and non-dispersed oil.’’ 

Rather, the Agency is establishing a 

framework in which the responsible 

party must identify sampling and 

analytical methods within a DMQAPP 

that provides the OSC and pertinent 

response agencies context for the 

collected data. This approach allows 

sampling and analytical methods to 

continue to advance without the need to 

periodically modify regulatory text to 

reflect any such advances. Finally, for 

analyses that take more than 24 hours 

due to analytical methods, the Agency 

is clarifying that the responsible party 

report data and results if it becomes 

available prior to the 5-day period. 

Reporting results and data as soon as it 

becomes available avoids unnecessary 

delays in providing decision-makers, 

including relevant regulatory agencies, 

with timely information. 

A commenter noted that the 

requirements for daily reporting of 

water sampling data in § 300.913(f) 

should only apply to subsea dispersant 

injection and are not useful for 

dispersant decision-making. The 

commenter stated that daily sampling 

and testing is arbitrary, overly 

burdensome, and unnecessary, 

suggesting that OSCs should have 

discretion in the frequency of sampling 

after the initial efficacy tests. 

Additionally, this commenter stated that 

the five day turnaround is unrealistic, 

given that it can take several days for 

sample transport and analysis. This 

commenter cited the quantity of 

samples and backlogs that resulted from 

the Deepwater Horizon response. 

EPA disagrees with the comment that 

stated daily reporting of water sampling 

data is not useful to dispersant decisionmaking, burdensome, or unrealistic 

given the experiences of the Deepwater 

Horizon oil spill. The final monitoring 

provisions require daily reporting of 

sampling and data analyses collected 

within the time frame necessary to make 

operational decisions unless an 

alternate time frame is authorized by the 

OSC. Additionally, a schedule is 

required for any data analyses that 

require time beyond 24 hours due to 

analytical methods; this schedule is not 

to exceed five days (i.e., 120 hours) 

unless authorized by the OSC. Timely 

sample analyses afford the OSC and 

other responders and decision makers 

with multiple relevant data that can be 

analyzed together to inform situational 

awareness of dispersant operations and 

adjust dispersant application as 

necessary. The Agency believes that a 

five-day window for analyses requiring 

additional time provides an adequate 

opportunity for the RP to arrange to 

conduct all requested analyses in a 

timely manner without being overly 

restrictive. The Agency believes the 

final rule provides flexibility for the 

OSC to provide an alternative time 

frame that is operationally relevant for 


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analyses that take more than 24 hours 

due to analytical methods. 

The Agency disagrees that daily water 

sampling and testing is burdensome and 

therefore also disagrees that only the 

OSC should determine the sampling 

frequency after initial efficacy tests. The 

Agency believes monitoring dispersant 

use in the field informs the OSC and 

response support agencies on its overall 

effectiveness, including potential 

environmental effects and transport of 

dispersed oil. Daily reporting serves to 

ensure information is received in a 

timely manner. The final rule provides 

notification for a responsible party to 

identify what analytical resources will 

be needed ahead of time rather than 

wait until an incident occurs to do so. 

A responsible party can also arrange for 

a schedule to prepare, transport, 

process, and analyze samples as part of 

response planning. The Agency believes 

that the responsible party can identify 

analytical processing resources (e.g., 

analytical laboratories) and arrange a 

sampling and processing schedule prior 

to any incident. 

The Agency disagrees that daily 

reporting of water sampling data should 

apply only to subsurface dispersant 

injection. Daily reporting of sampling 

data and other relevant information 

equally serves to inform surface 

dispersant application. The daily 

reporting requirement for collected data 

and analyses is necessary to make 

operational decisions, including 

documented observations, photographs, 

video, and any other information related 

to dispersant use, unless an alternate 

time frame is authorized by the OSC. 

While the responsible party shall 

provide data and results within five 

days, the final action provides flexibility 

to establish an alternate time frame 

authorized by the OSC for analyses that 

take more than 24 hours due to 

analytical methods. 

A commenter also suggested 

combining the Daily Reporting section 

with the Immediate Reporting section 

and included recommended language. 

EPA believes keeping these sections 

separate more clearly identifies the 

specific requirements within the two 

different time frames. 

Another commenter stated that EPA 

should make plans to protect worker 

health and public health required in 

ACPs along with already required plans 

to protect wildlife and to require daily 

public notification of product use, 

location, and quantity. The Agency 

notes that the NCP requires compliance 

with applicable worker health and 

safety regulations, including OSHA, 

under 40 CFR 300.150. Amendments to 

worker health and safety requirements 

under 40 CFR 300.150 and to Area 

Contingency Planning requirements 

under 40 CFR 300.210(c) are outside the 

scope of this final action on monitoring 

requirements. The Agency refers readers 

to the Immediate Reporting discussion 

where similar comments are addressed 

relative to public notification of 

dispersant-related information for 

further analysis of this issue. 

VI. Overview of New Rule Citations 

The Table below provides an 

overview of the new rule citations under 

40 CFR part 300, subpart J, for a quick 

reference of the changes. New section, 

§ 300.913, Monitoring the Use of 

Dispersants, adds regulatory 

requirements for monitoring certain 

prolonged surface and subsurface use of 

dispersants. 

SECTION 300.913 DISTRIBUTION TABLE

§ 300.913 Monitoring 

the Use of 

Dispersants.

General Applicability. 

§ 300.913(a) .............. Information on Dispersant Application. 

§ 300.913(b) .............. Water Column Sampling. 

§ 300.913(c) .............. Oil Distribution Analyses. 

§ 300.913(d) .............. Ecological Characterization. 

§ 300.913(e) .............. Immediate Reporting. 

§ 300.913(f) ............... Daily Reporting. 

§ 300.913(g) .............. Immediate and Daily 

Reporting to RRTs. 

VII. Statutory and Executive Order 

Reviews 

Additional information about these 

statutes and Executive Orders can be 

found at http://www2.epa.gov/lawsregulations/laws-and-executive-orders. 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action is a significant regulatory 

action that was submitted to the Office 

of Management and Budget (OMB) for 

review. This action raises novel legal or 

policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the Executive 

Order. Any changes made in response to 

OMB recommendations have been 

documented in the docket for this 

action. In addition, EPA prepared an 

analysis of the potential costs and 

benefits associated with this action. 

This analysis, ‘‘Regulatory Impact 

Analysis, National Oil and Hazardous 

Substances Pollution Contingency Plan; 

Subpart J Monitoring Requirements’’, is 

available in the docket for this action. 

B. Paperwork Reduction Act (PRA) 

The information collection 

requirements in this final action have 

been submitted for approval to the 

Office of Management and Budget 

(OMB) under the PRA. The Information 

Collection Request (ICR) document 

prepared by EPA has been assigned EPA 

ICR No. 2675.01 (OMB Control No. 

2050–NEW). A copy of the ICR is 

provided in the docket for this rule and 

it is briefly summarized here. The 

monitoring provisions of the final rule 

include documentation of information 

about dispersant application; water 

sampling, oil distribution, and 

ecological characterization analysis; 

and, immediate and daily reporting. 

For this ICR, EPA has estimated an 

annualized cost for monitoring oil 

discharges for dispersants in the range 

of $32,000 to $3.0 million per year. This 

estimated range reflects the fact that 

costs can vary significantly depending 

upon the frequency, volume, duration, 

and location of oil discharges. EPA 

based its estimates on a range of oil 

discharge scenarios capturing different 

spill sources, volumes, and monitoring 

durations. The annual monitoring cost 

also reflects EPA’s estimated applicabledischarge rate of 0.2 incidents per year, 

or one applicable discharge every five 

years, based on EPA’s analysis of 

historical discharges. 

EPA has carefully considered the 

burden imposed upon the regulated 

community by the regulations. EPA 

believes that the activities required are 

necessary and, to the extent possible, 

has attempted to minimize the burden 

imposed. The minimum requirements 

specified in the final rule are intended 

to ensure that, when needed, product 

use is properly monitored in the field so 

that the oil discharge response is 

performed in a manner protective of 

human health and the environment. 

Respondents/affected entities: Oil 

discharge responsible parties. 

Respondent’s obligation to respond: 

Mandatory (40 CFR part 300, subpart J). 

Estimated number of respondents: 0– 

1 per year. 

Frequency of response: 0.2 time per 

year. 

Total estimated cost: $32,000– 

$3,033,000 (per year for monitoring oil 

discharges). 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for the EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. When 

OMB approves this ICR, the Agency will 

announce that approval in the Federal 


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Register and publish a technical 

amendment to 40 CFR part 9 to display 

the OMB control number for the 

approved information collection 

activities contained in this final rule. 

C. Regulatory Flexibility Act (RFA) 

I certify that this action will not have 

a significant economic impact on a 

substantial number of small entities 

under the RFA. In making this 

determination, the impact of concern is 

any significant adverse economic 

impact on small entities. 

EPA conducted a small business 

analysis consistent with the Agency’s 

2006 small business guidance. The 

Agency’s analysis indicates that 9,527 

affected entities are small businesses in 

the following industries: Crude 

Petroleum Extraction, Natural Gas 

Extraction, Petroleum Refineries, 

Petroleum Bulk Stations and Terminals, 

Natural Gas Extraction, Petroleum and 

Petroleum Products Merchant 

Wholesalers (except Bulk Stations and 

Terminals), Petroleum and Petroleum 

Products Merchant Wholesalers (except 

Bulk Stations and Terminals), Deep Sea 

Freight Transportation, Coastal and 

Great Lakes Freight Transportation, and 

Pipeline Transportation of Crude Oil. 

In conducting the small business 

analysis, the agency compared the 

incremental annualized compliance cost 

to the annual sales revenue for the 

smallest entities. The results indicate 

that if a small entity is responsible for 

a relatively large oil discharge, then the 

impact on that individual entity could 

be significant. However, there are 

important factors to consider when 

assessing the rule’s overall effect on 

small businesses, including that 

historically, the RPs for applicable 

discharges are not very small entities, 

which constitute the vast majority of 

potential impacted entities in this 

analysis. In addition, the rarity of 

applicable discharges historically 

suggests that there will be only one 

entity affected by the rule (whether 

significantly or nonsignificantly) every 

five years, on average. For these reasons, 

EPA concludes that the final rule’s 

requirements will not have a significant 

impact on a substantial number of small 

entities (SISNOSE). The small business 

analysis is available for review in the 

Regulatory Impact Analysis (RIA). 

D. Unfunded Mandates Reform Act 

This action does not contain any 

unfunded mandate of $100 million or 

more as described in UMRA, 2 U.S.C. 

1531–1538, and does not significantly or 

uniquely affect small governments. This 

final rule imposes no new enforceable 

duty on any state, local, or tribal 

governments or the private sector. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

EPA has concluded that this action 

may have tribal implications because all 

tribes can be affected by oil spills and 

the subsequent use of oil spill mitigating 

agents, such as dispersants and 

bioremediation agents. However, this 

action will neither impose substantial 

direct compliance costs on tribal 

governments, nor preempt Tribal law, 

similarly to the effect on states. 

EPA consulted with tribal officials 

under EPA Policy on Consultation and 

Coordination with Indian Tribes early in 

the process of developing this regulation 

to enable them to have meaningful and 

timely input into its development. The 

NCP is the federal government’s 

blueprint for responding to both oil 

spills and hazardous substance releases. 

Among other provisions, Subpart J of 

the NCP governs environmental 

monitoring of dispersants and other 

chemical agents to respond to oil spills 

in jurisdictional waters. Under the NCP, 

tribes are included in the definition of 

‘‘State’’ found in 40 CFR 300.5 except 

where specifically noted, and may 

participate as members of Area 

Committees, on RRTs, and on Tribal 

Emergency Response Commissions. See 

40 CFR 300.5. 

EPA’s government-to-government 

consultation period occurred from 

March 11, 2015, to March 26, 2015, 

when EPA headquarters held five 

teleconference consultation events that 

informed tribes of the possible changes 

to the regulation as it was proposed in 

the Federal Register. Representatives 

from 10 tribes, tribal associations and 

organizations participated. During these 

calls, senior EPA staff fielded questions 

about the rulemaking as well as 

recorded comments and feedback. 

Tribal leaders and/or their delegated 

representatives raised questions about 

the use of dispersants and ensuring 

habitat and resource protection when 

responding to oil spills in Indian 

Country. EPA considered the input from 

these consultation calls and 

coordination activities, in conjunction 

with public comments, in the final rule 

development. 

In addition to consultation with 

tribes, EPA also conducted outreach to 

tribes over the two years before 

consultation. EPA staff participated in 

several tribal conferences and meetings 

where the proposed rulemaking was 

discussed, and information distributed 

to all participating tribes. Rulemaking 

outreach literature promoted awareness 

and coordination about the proposed 

regulation. 

As required by section 7(a), EPA’s 

Tribal Consultation Official has certified 

that the requirements of the executive 

order have been met in a meaningful 

and timely manner. A copy of the 

certification is included in the docket 

for this action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets Executive Order 13045 

as applying only to those regulatory 

actions that concern environmental 

health or safety risks that EPA has 

reason to believe may 

disproportionately affect children, per 

the definition of ‘‘covered regulatory 

action’’ in section 2–202 of the 

Executive Order. This action is not 

subject to Executive Order 13045 

because it does not concern an 

environmental health risk or safety risk. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution or Use 

This action is not a ‘‘significant 

energy action’’ because it is not likely to 

have a significant adverse effect on the 

supply, distribution, or use of energy. 

The final rule focuses on monitoring 

requirements to address subsurface and 

certain surface applications of 

dispersants that meet applicability 

criteria specified by the final rule and 

minimizing potential adverse impacts 

from their use; thus, the rule will result 

in greater overall environmental 

protection. The final rule will not cause 

reductions in the supply or production 

of oil, fuel, coal, or electricity; nor will 

it result in increased energy prices, 

increased cost of energy distribution, or 

an increased dependence on foreign 

supplies of energy. 

I. National Technology Transfer and 

Advancement Act 

This rulemaking does not involve 

technical standards. 

J. Executive Order 12898: 

Environmental Justice (EJ) 

EPA believes that this action does not 

have disproportionately high and 


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adverse human health or environmental 

effects on minority populations, lowincome populations, and/or indigenous 

peoples, as specified in Executive Order 

12898 (59 FR 7629, February 16, 1994). 

The documentation for this decision 

is contained in Regulatory Impact 

Analysis (RIA) for this action. This final 

rule is consistent with EPA’s 

Environmental Justice Strategy and the 

Office of Land and Emergency 

Management (OLEM) Environmental 

Justice Action Agenda. To address the 

goals of the Strategy and the Agenda, 

EPA conducted a qualitative analysis of 

the environmental justice issues under 

this final rule. 

Historically, EPA has not found any 

evidence that the use of dispersant 

agents on oil discharges in the United 

States has had any disproportionate 

effect on any environmental justice 

communities. Moreover, the final rule is 

anticipated to improve the efficacy of 

dispersant application activities through 

monitoring requirements and thereby 

mitigate what could otherwise occur as 

adverse impacts from potentially less 

effective dispersant use. EPA will 

monitor the implementation of the rule 

to ensure the monitoring of dispersant 

agents has no disproportionate effect on 

any EJ communities. 

K. Congressional Review Act (CRA) 

This action is subject to the CRA, and 

the EPA will submit a rule report to 

each House of the Congress and to the 

Comptroller General of the United 

States. This action is not a ‘‘major rule’’ 

as defined by 5 U.S.C. 804(2). 

List of Subjects in 40 CFR Part 300 

Environmental protection, Area 

contingency planning, Chemical agents, 

Daily reporting, Dispersants, Hazardous 

Substances, Intergovernmental relations, 

Monitoring, Natural resources, Oil 

pollution, Oil spills, Oil spill mitigating 

devices, On-scene coordinator, Quality 

assurance, Regional response teams, 

Reporting and recordkeeping 

requirements, Responsible party. 

Dated: July 6, 2021. 

Michael S. Regan, 

Administrator. 

For the reasons set out in the 

preamble, the Environmental Protection 

Agency amends 40 CFR part 300 as 

follows: 

PART 300—NATIONAL OIL AND 

HAZARDOUS SUBSTANCES 

POLLUTION CONTINGENCY PLAN 

■ 1. The authority citation for part 300 

continues to read as follows: 

Authority: 33 U.S.C. 1251 et seq; 42 U.S.C. 

9601–9657; E.O. 13626, 77 FR 56749, 3 CFR, 

2013 Comp., p. 306; E.O. 12777, 56 FR 54757, 

3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 

FR 2923, 3 CFR, 1987 Comp., p. 193. 

Subpart J—Use of Dispersants, and 

Other Chemicals 

■ 2. Add § 300.913 to read as follows: 

§ 300.913 Monitoring the use of 

dispersants. 

The responsible party shall monitor 

any subsurface use of dispersant in 

response to an oil discharge, any surface 

use of dispersant for more than 96 hours 

after initial application in response to 

an oil discharge, and any surface use of 

dispersant in response to oil discharges 

of more than 100,000 U.S. gallons 

occurring within a 24-hour period, and 

shall submit a Dispersant Monitoring 

Quality Assurance Project Plan 

(DMQAPP) covering the collection of 

environmental data within this section 

to the OSC. When any dispersant is 

used subsurface in response to an oil 

discharge, the responsible party shall 

implement paragraphs (a) through (g) of 

this section for the entire duration of the 

subsurface dispersant use. When any 

dispersant is used on the surface in 

response to oil discharges of greater 

than 100,000 U.S. gallons occurring 

within a 24-hour period, the responsible 

party shall implement paragraphs (a) 

through (g) of this section as soon as 

possible for the entire or remaining 

duration of surface dispersant use, as 

applicable. When any dispersant is used 

on the surface in response to an oil 

discharge for more than 96 hours after 

initial application, the responsible party 

shall implement paragraphs (a) through 

(g) of this section for the remaining 

duration of surface dispersant use. 

(a) Document: 

(1) The characteristics of the source 

oil. 

(2) The best estimate of the oil 

discharge volume or flow rate, 

periodically reevaluated as conditions 

dictate, including a description of the 

method, associated uncertainties, and 

materials. 

(3) The dispersant used, rationale for 

dispersant choice(s) including the 

results of any efficacy and toxicity tests 

specific to area or site conditions, 

recommended dispersant-to-oil ratio 

(DOR). 

(4) The application method(s) and 

procedures, including a description of 

the equipment to be used, hourly 

application rates, capacities, and total 

amount of dispersant. 

(5) For subsurface discharges, the best 

estimate of the discharge flow rate of 

any associated volatile petroleum 

hydrocarbons, periodically reevaluated 

as conditions dictate, including a 

description of the method, associated 

uncertainties, and materials. 

(b) Collect a representative set of 

ambient background water column 

samples in areas not affected by the 

discharge of oil, at the closest safe 

distance from the discharge as 

determined by the OSC, and in all 

directions of likely oil transport 

considering surface and subsurface 

currents. Collect a representative set of 

baseline water column samples absent 

dispersant application at such depths 

and locations affected by the oil 

discharge, considering surface and 

subsurface currents, oil properties, and 

other relevant discharge conditions. On 

a daily basis, collect dispersed oil 

plume water column samples at such 

depths and locations where dispersed 

oil is likely to be present, considering 

surface and subsurface currents, oil 

properties, and other relevant discharge 

conditions. Collect these ambient 

background, baseline, and dispersed oil 

plume water column samples following 

standard operating and quality 

assurance procedures. Analyze the 

collected ambient background, baseline, 

and dispersed oil plume water column 

samples for: 

(1) In-situ oil droplet size distribution, 

including mass or volume mean 

diameter for droplet sizes ranging from 

2.5 to 2,000 mm, with the majority of 

data collected between the 2.5 and 100 

mm size. 

(2) In-situ fluorometry and 

fluorescence signatures targeted to the 

type of oil discharged and referenced 

against the source oil. 

(3) Dissolved oxygen (DO) (subsurface 

only). 

(4) Total petroleum hydrocarbons, 

individual resolvable constituents 

including volatile organic compounds, 

aliphatic hydrocarbons, monocyclic, 

polycyclic, and other aromatic 

hydrocarbons including alkylated 

homologs, and hopane and sterane 

biomarker compounds. 

(5) Methane, if present (subsurface 

only). 

(6) Heavy metals, including nickel 

and vanadium. 

(7) Turbidity. 

(8) Water temperature. 

(9) pH. 

(10) Conductivity. 

(c) Considering available 

technologies, characterize the dispersant 

effectiveness and oil distribution 

including trajectory, accounting for the 

condition of oil, dispersant, and 

dispersed oil components from the 

discharge location, and describing 

associated uncertainties. 


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(d) Characterize the ecological 

receptors (e.g., aquatic species, wildlife, 

and/or other biological resources) and 

their habitats that may be present in the 

discharge area and their exposure 

pathways. The characterization shall 

include, but is not limited to, those 

species that may be in sensitive life 

stages, transient or migratory species, 

breeding or breeding-related activities 

(e.g., embryo and larvae development), 

and threatened and/or endangered 

species that may be exposed to the oil 

that is not dispersed, the dispersed oil, 

and the dispersant alone. The 

responsible party shall also estimate an 

acute toxicity level of concern for the 

dispersed oil using available doseresponse information relevant to 

potentially exposed species following a 

species sensitivity distribution. 

(e) Immediately report to the OSC 

any: 

(1) Deviation of more than 10 percent 

from the mean hourly dispersant use 

rate for subsurface application, based on 

the dispersant volume authorized for 24 

hours use, and the reason for the 

deviation. 

(2) Ecological receptors of 

environmental importance, and any 

other ecological receptors as identified 

by the OSC or the Natural Resource 

Trustees, including any threatened or 

endangered species that may be exposed 

based on dispersed plume trajectory 

modeling and level of concern 

information. 

(f) Report daily to the OSC water 

sampling and data analyses collected in 

paragraph (b) of this section and 

include: 

(1) For each application platform, the 

actual amount of dispersant used for 

each one-hour period and the total 

amount of dispersant used for the 

previous 24-hour reporting period. 

(2) All collected data and analyses of 

those data within a time frame 

necessary to make operational decisions 

(e.g., within 24 hours of collection), 

including documented observations, 

photographs, video, and any other 

information related to dispersant use, 

unless an alternate time frame is 

authorized by the OSC. 

(3) For analyses that take more than 

24 hours due to analytical methods, 

provide such data and results as 

available but no later than five days, 

unless an alternate time frame is 

authorized by the OSC. 

(4) Estimates of the daily transport of 

dispersed oil, non-dispersed oil, the 

associated volatile petroleum 

hydrocarbons, and dispersants, using 

available technology as described in 

paragraph (c) of this section. 

(g) Report all information provided to 

the OSC under paragraphs (e) and (f) of 

this section to the applicable RRT(s). 

[FR Doc. 2021–15122 Filed 7–26–21; 8:45 am] 

BILLING CODE 6560–50–P 


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